Skip to main content

Full text of "Copyright term, film labeling, and film preservation legislation : hearings before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 989, H.R. 1248, and H.R. 1734 ... June 1 and July 13, 1995"

See other formats


COPYRIGHT TERM, HLM LABEUNG, AND HLM 
PRESERVATION LEGISLATION 



Y 4. J 89/1:104/53 



^ 



Copuriaht Tern: Flln LabelinOi and... 

BEFORE THE 

SUBCOMMITTEE OX 
COURTS AND INTELLECTUAL PROPERTY 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 
ON 

H.R. 989, H.R. 1248, and H.R. 1734 

COPYRIGHT TERM, FILM LABELING, AND FILM PRESERVATION 

LEGISLATION 



JUNE 1 AND JULY 13, 1995 



Serial No. 53 



li"~iniil III lim II wmi 

': 




bupenntendenf of Documents 
DiiPOSlTORY 

JUiM 2 5 1996 

Boston Public Library 
lovernment Dscunnents Deot. | 






Printed for the use of the Committee on the Judiciary 



COPYRIGHT TERM, HLM LABEUNG, AND HLM 
PRESERVATION LEGISUTION 



HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON 
COURTS AND INTELLECTUAL PROPERTY 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 
ON 

H.R. 989, H.R. 1248, and H.R. 1734 

COPYRIGHT TERM, FILM LABELING, AND FILM PRESERVATION 

LEGISLATION 



JUNE 1 AND JULY 13, 1995 



Serial No. 53 




Printed for the use of the Committee on the Judiciary 



U.S. GOVERNMENT PRINTING OFFICE 
23-267 WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052625-6 



COMMITTEE ON THE JUDICIARY 

HENRY J. HYDE, Illinois, Chairman 

CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan 

F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado 

Wisconsin BARNEY FRANK, Massachusetts 

BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York 

GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California 

HOWARD COBLE, North Carolina RICK BOUCHER, Virginia 

LAMAR SMITH, Texas JOHN BRYANT, Texas 

STEVEN SCHIFF, New Mexico JACK REED, Rhode Island 

ELTON GALLEGLY, Cahfomia JERROLD NADLER, New York 

CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia 

BOB INGLIS, South Carolina MELVIN L. WATT, North CaroUna 

BOB GOODLATTE, Virginia XAVpiR BECERRA, California 

STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York 

MARTIN R. HOKE, Ohio ZOE LOFGREN, California 

SONNY BONO, CaUfomia SHEILA JACKSON LEE, Texas 
FRED HEINEMAN, North Carolina 
ED BRYANT, Tennessee 
STEVE CHABOT, Ohio 
MICHAEL PATRICK FLANAGAN, Illinois 
BOB BARR, Georgia 

Alan F. Coffey, Jr., General Counsel / Staff Director 
Julian Epstein, Minority Staff Director 



Subcommittee on Courts and Intellectual Property 

CARLOS J. MOORHEAD, California, Chairman 
F JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado 

Wisconsin JOHN CONYERS, Jr., Michigan 

HOWARD COBLE, North CaroUna HOWARD L. BERMAN, California 

BOB GOODLATTE, Virginia XAVIER BECERRA, CaUfomia 

SONNY BONO, CaUfomia RICK BOUCHER, Virginia 

GEORGE W. GEKAS, Pennsylvania JERROLD NADLER, New York 

ELTON GALLEGLY, CaUfomia 
CHARLES T. CANADY, Florida 
MARTIN R. HOKE, Ohio 

Thomas E. Mooney, Chief Counsel 

Joseph V. Wolfe, Counsel 
Mitch Glazier, Assistant Counsel 

Jon Dudas, Assistant Counsel 
Betty Wheeler, Minority Counsel 

(II) 



CONTENTS 



HEARINGS DATES 

Page 

June 1, 1995 1 

July 13, 1995 155 

TEXTS OF BILLS 

H.R. 989 4 

H.R. 1248 8 

H.R. 1734 24 

OPENING STATEMENT 

Moorhead, Hon. Carlos J., a Representative in Congress from the State of 
California, and chairman, Subcommittee on Courts and Intellectual Prop- 
erty 1 

WITNESSES 

Barshefsky, Ambassador Charlene, Deputy U.S. Trade Representative, Office 

of the U.S. Trade RepresenUtive 205 

Belton, John, professor, Rutgers University, on behalf of the Society for Cin- 
ema Studies 281 

Bergman, Marilyn, songwriter, president and chairman of the board, Amer- 
ican Society oi Composers, Authors and Publishers 56 

Coohdge, Martha, member, Directors Guild of America, Inc 106 

Eves, Jeffrey P., president, Video Software Dealers Association, on behalf 

of the Committee for America's Copyright Community 113 

Jones, Quincy, songwriter and member, AmSong, Inc 233 

Karjala, Dennis S., professor of law, Arizona State University, on behalf 

of the U.S. Copyright and Intellectual Property Law Professors 290 

Koenigsberg, Fred, counsel, ASCAP 99 

Lehman, Bruce A., Assistant Secretary of Commerce and Commissioner of 

Patents and Trademarks 212 

Mancini, Mrs. Henry 112 

Murphy, Edward P., president and CEO, National Music Publishers' Associa- 
tion, Lac 74 

Patry, William F., professor, Benjamin N. Cardozo College of Law 312 

Peters, Marybeth, Register of Copyrights and Associate Librarian for Copy- 
right Services, Library of Congress 157 

Reimman, J.H., professor of law, Vanderbilt University 355 

Richmond, Edward, president. Association of Moving Image Archivists 64 

Saffer, Judith M., assistant general counsel. Broadcast Music, Inc 141 

Valenti, Jack, president and CEO, Motion Picture Association of America 50 

Weller, Michael, playwrite, screenwriter, and member. Writers Guild of Amer- 
ica, East 132 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS 

Barrett, Mary Ellin, daughter of Irving Berlin: Prepared statement 272 

Barshefsky, Ambassador Charlene, Deputy U.S. Trade Representative, Office 

of the U.S. Trade Representative: Prepared statement 207 

Belton, John, professor, Rutgers University, on behalf of the Society for Cin- 
ema Studies: Prepared statement 285 



(III) 



IV 

Page 

Bergman, Marilyn, songwriter, president and chairman of the board, Amer- 
ican Society of Composers, Autnors and Publishers: Prepared statement 59 

Coolidge, Martha, member, Directors Guild of America, Inc.: Prepared state- 
ment 109 

Donaldson, Ellen, Donaldson Publishing Co., vice president, AmSong: Pre- 
pared statement 247 

Durham, Marsha: Prepared statement 268 

Dylan, Bob: Prepared statement 240 

Eves, Jeffrey P., president. Video Software Dealers Association, on behalf 
of the Committee for America's Copyright Community: Prepared statement 116 

Henley, Don: Prepared statement 241 

Jones, Quincy, songwriter and member, AmSong, Inc.: Prepared statement 237 

Kariala, Dennis S., professor of law, Arizona State University, on behalf 
01 the U.S. Copyright and Intellectual Property Law Professors: Prepared 

statement 292 

Lehman, Bruce A., Assistant Secretary of Commerce and Commissioner of 

Patents and Trademarks: Prepared statement 214 

Mamcini, Mrs. Henry: Prepared statement 246 

Menken, Alan, composer: Prepared statement 243 

Miller, Betty Kern: Prepared statement 270 

Murphy, Edward P., president and CEO, National Music Publishers' Associa- 
tion, Lac: Prepared statement 78 

Patry, William F., professor, Benjamin N. Cardozo College of Law: Prepared 

statement 316 

Peters, Marybeth, Register of Copyrights and Associate Librarian for Copy- 
right Services, Library of Congress: Prepared statement 161 

Reicnman, J.H., professor of law, Vanderbilt University: Prepared statement . 359 
Richmond, Edward, president. Association of Moving Image Archivists: Pre- 
pared statement 67 

SafTer, Judith M., assistant general counsel. Broadcast Music, Inc.: Prepared 

statement 142 

Schroeder, Hon. Patricia, a Representative in Congress from the State of 

Colorado: Prepared statement 224 

Schoenbei*g, E. Randol: Prepared statement 264 

Sondheim, Stephen: Prepared statement 244 

Valenti, Jack, president and CEO, Motion Picture Association of America: 

Prepfired statement 53 

Weller, Michael, playwrite, screenwriter, and member. Writers Guild of Amer- 
ica, East: Prepared statement 135 

APPENDIX 
Material submitted for the hearings 423 



COPYRIGHT TERM, FILM LABELING, AND 
FILM PRESERVATION LEGISLATION 



THURSDAY, JUNE 1, 1995 

House of Representatives, 
subcommitee on courts and 

Intellectual Property, 
Committee on the Judiciary, 

Pasadena, CA. 
The subcommittee met, pursuant to notice, at 9 a.m., at the Rich- 
ard H. Chambers U.S. Court of Appeals Building, 1255 Grand Ave- 
nue, Pasadena, CA, Hon. Carlos J. Moorhead (chairman of the sub- 
committee) presiding. 

Present: Representatives Carlos J. Moorhead, Sonny Bono, John 
Conyers, Jr., Howard L. Berman, and Xavier Becerra. 

Also present: Joseph V. Wolfe, counsel; Mitch Glazier, assistant 
counsel; Sheila Wood, secretary; Julian Epstein, minority staff di- 
rector; and Betty Wheeler, minority counsel. 

OPENING STATEMENT OF CHAIRMAN MOORHEAD 

Mr. Moorhead. The Subcommittee on Courts and Intellectual 
Property will come to order. 

Today, the subcommittee is conducting a hearing on H.R. 989, 
the Copyright Term Extension Act of 1995; H.R. 1248, the Film 
Disclosure Act of 1995; and H.R. 1734, the National Film Preserva- 
tion Act of 1995. 

H.R. 989, which I introduced, would extend the term of owner- 
ship of a copyrighted work from the life of the author plus 50 years 
to the life of the author plus 70 years. I am pleased that the rank- 
ing minority member of the subcommittee, Representative Schroe- 
der and Representatives Coble, Goodlatte, Bono, Gekas, Berman, 
Nadler, and Clement are cosponsoring the legislation. This change 
will bring U.S. law into conformity with that of the European 
Union whose member States are among the largest users of our 
copyrighted works. 

The last time the Congress considered and enacted copyright 
term extension legislation was 1976. At that time, the House report 
noted that copyright conformity provides certainty and simplicity in 
international business dealings. 

The intent of the 1976 act was twofold: First, to bring the term 
of the works by Americans into agreement with the then minimum 
term provided by European countries; and second, to assure the au- 
thor and his or her heirs of the fair economic benefits derived from 

(1) 



the author's work. The 1976 law needs to be revisited since neither 
of these objectives is being met. 

In October 1993, the European Union adopted a directive man- 
dating copyright term protection equal to the life of the author plus 
70 years for all works originating in the European Union, no later 
than the first of July of this year. The E.U. action has serious trade 
implications for the United States. 

United States and the E.U. nations are all signatories of the 
Berne Copyright Convention, which includes the so-called rule of 
the shorter term, which accords copyright protection for a term 
which is the shorter of life plus 70 years or the term of copyright 
in the country of origin. 

Once this directive is implemented, U.S. works will only be 
granted copyright protection for the shorter life plus 50-year term 
before falling into the public domain. 

The main reasons for this extension of term are fairness and eco- 
nomics. If the Congress does not extend to Americans the same 
copyright protection afforded their counterparts in Europe, Amer- 
ican creators will have 20 years less protection than their Euro- 
pean counterparts; 20 years during which Europeans will not be 
paying Americans for their copyrighted works. And whose works do 
Europeans buy more than any other country? Works of American 
artists. This would be harmful to the country and work a hardship 
on American creators. 

The second bill before us this morning is H.R. 1248, the Film 
Disclosure Act of 1995. This legislation seeks to protect the rights 
of filmmakers who fear that post production changes in films 
threatens the integrity of their creative works. The bill would re- 
quire that films be labeled to indicate what alterations have been 
made and to indicate if the director, screenwriter, or cinematog- 
rapher objects to these alterations. 

I recall when the former chairman of this subcommittee. Bob 
Kastenmeier, held a hearing on legislation similar to H.R. 1248 at 
UCLA back in January 1990. At that hearing. Bob indicated that 
it was his belief that there are certain criteria that Congress must 
use in considering any dispute of this nature. 

They are: First, we must ask the proponents of change to bear 
the burden of proving that the change is necessary, fair, and prac- 
tical. 

Second, we must always recognize and balance the legitimate 
rights of creators, producers or copyright holders, and the public in- 
terest. 

Third, a private solution negotiated by interested parties is al- 
ways preferable to congressional intervention. I think this set of 
criteria is just as valuable today for evaluating a proposal such as 
H.R. 1248. 

I would urge all of the parties involved to get together some time 
this year, or as early as possible, and try to see what arrangements 
can be made that is agreeable to all the parties. I would really urge 
you to do that. I think it would be very serious to have Congress 
make the determination. And I think that all of you work in the 
same industry, and you live off of the proceeds of these films. And, 
surely, I think everybody should try to work out something to- 
gether that satisfies everyone's interests. 



The third piece of legislation on the agenda for this morning's 
hearing is H.R. 1734, the National Film Preservation Act of 1995. 
In 1988, Congress established the National Film Preservation 
Board to focus on the important goal of film preservation. 

In 1992, the board was reauthorized for another 3 years. The 
1992 act also called for a 1-year study of the national film preser- 
vation problem. 

Among the many important findings in the film preservation 
study was that fewer than 20 percent of feature films from the 
1920's survive in complete form. For features of the 1910's, the sur- 
vival rate falls to about 10 percent. Of films made before 1950, only 
about half survive. 

In addition to the study, the 1992 Reauthorization Act also called 
for a plan to address the issues of film preservation. Completed in 
August 1994, the plan entitled, "Redefining Film Preservation," 
was the product of 6 months of negotiations and consensus building 
among archivists, educators, filmmakers, and film industry execu- 
tives. 

Under H.R. 1734, the Librarian of Congress would be able to con- 
tinue implementation of the national film preservation plan. Title 
I of the legislation would reauthorize the National Film Preserva- 
tion Board while title II would establish the National Film Preser- 
vation Foundation to raise funds to concentrate on those films that 
are not preserved by commercial interests such as public domain, 
educational, historical footage, and so forth as well as to further 
other parts of the national film preservation plan. 

This morning we have two distinguished panels of witnesses and 
I look forward to their testimony. 

[The bills, H.R. 989, H.R. 1248, and H.R. 1734, follow:] 



104th congress 
1st Session 



H. R. 989 



To amend title 17, United States Code, with respect to the duration of 
cop\Tight, and for other purposes. 



IX THE HOUSE OF REPRESEXTATR^S 

February 16, 1995 
Mr. MOORHEAD (for himself, Mrs. SCHROEDER, Mr. COBLE, Mr. GOODLATTE, 
Mr. Bo.N'O, Mr. Gekas, Mr. BERiiAN, Mr. Nadler, Mr. Clement, and 
Mr. Gallegly) introduced the following bill; which was referred to the 
Committee on the Judiciarv 



A BILL 

To amend title 17, United States Code, with respect to 
the duration of copyright, and for other purposes. 

1 Be it enacted by the Senate and House of Bepresenta- 

2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Copyright Term Ex- 

5 tension Act of 1995". 

6 SEC. 2. DURATION OF COPYRIGHT PROVISIONS. 

7 (a) Preemption With Respect to Other 

8 Laws. — Section 301(c) of title 17, United States Code, 



2 

1 is amended by striking "Februan' 15, 2047" each place 

2 it appears and inserting "Februan' 15, 2067". 

3 (b) Duration of Cop^-right: Works Created Ox 

4 or ^U^ter J.VXUARY 1, 1978. — Section 302 of title 17, 

5 United States Code, is amended — 

6 (1) in subsection (a) by striking "fiftA*" and in- 

7 serting "70"; 

8 (2) in subsection (b) by striking "fiftj-" and in- 

9 serting "70"; 

10 (3) in subsection (c) in the first sentence — 

11 (A) by striking "seventj'-five" and insert- 

12 ing "95"; and 

13 (B) by striking "one hundred" and insert- 

14 ing "120"; and 

15 (4) in subsection (e) in the first sentence — 

16 (A) by striking "seventA'-five" and insert- 

17 ing "95"; 

18 (B) by striking "one hundred" and insert- 

19 ing "120"; and 

20 (C) by striking "fifty" each place it ap- 

21 pears and inserting "70". 

22 (c) Duration of Cop^tught: Works Created 

23 BUT NOT Published or Cop^tughted Before J^\xit- 

24 .VRY 1, 1978.— Section 303 of title 17, United States 

25 Code, is amended in the second sentence — 

•HR 989 m 



3 

1 (1) by striking "December 31, 2002" each 

2 place it appears and inserting "December 31, 

3 2012"; and 

4 (2) by striking "December 31, 2027" and in- 

5 serting "December 31, 2047". 

6 (d) DUILVTIOX OF COP-iHIGHT: SUBSISTLXG COPY- 

7 RIGHTS. — 

8 (1) Section 304 of title 17, United States Code, 

9 is amended — 

10 (A) in subsection (a) — 

11 (i) in paragraph (1) — 

12 (I) in subparagraph (B) bj' strik- 

13 ing "47" and inserting "67"; and 

14 (n) in subparagraph (C) by 

15 striking "47" and inserting "67"; 

16 (ii) in paragraph (2) — 

17 (I) in subparagraph (A) by strik- 

18 mg "47" and inserting "67"; and 

19 (II) in subparagraph (B) by 

20 striking "47" and inserting "67"; and 

21 (iii) in paragraph (3) — 

22 (I) in subparagraph (A)(i) by 

23 striking "47" and inserting "67"; and 

24 (II) in subparagraph (B) by 

25 striking "47" and inserting "67"; and 

•HR 989 IH 



4 

1 (B) in subsection (b) by striking "seventy- 

2 five" and inserting "95". 

3 (2) Section 102 of the Cop>Tight Renewal Act 

4 of 1992 (Public Law 102-307; 106 Stat. 266; 17 

5 U.S.C. 304 note) is amended — 

6 (A) in subsection (c) — 

7 (i) by striking "47" and inserting 

8 "67"; 

9 (ii) by striking "(as amended by sub- 

10 section (a) of this section)"; and 

11 (iii) by striking "effective date of this 

12 section" each place it appears and insert- 

13 ing "effective date of the Copwight Term 

14 Extension Act of 1995"; and 

15 (B) in subsection (g)(2) in the second sen- 

16 tence by inserting before the period the follow- 

17 ing: ", except each reference to forts'-seven 

18 years in such provisions shall be deemed to be 

19 67 years". 

20 SEC. 3. EFFECTIVE DATE. 

21 This Act and the amendments made by this Act shall 

22 take effect on the date of the enactment of tliis Act. 

O 



•HR 989 ra 



104th congress 
1st Session 



H.R.1248 



To amend the Lanham Act to require certain disclosures relating to materially 

altered films. 



IN THE HOUSE OF REPRESENTATIVES 

March 15, 1995 
Mr. Frank of Massachusetts (for himself, Mr. CONYERS, and Mr. Bryant 
of Texas) introduced the following bill; which was referred to the Com- 
mittee on the Judiciary 



A BILL 

To amend the Lanham Act to require certain disclosures 
relating to materially altered films. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Film Disclosure Act 

5 of 1995". 

6 SEC. 2. AMENDMENT TO THE LANHAM ACT. 

7 Section 43 of the Act entitled "An Act to provide for 

8 the registration and protection of trade-marks used in 

9 commerce, to carry out the provisions of certain inter- 
10 national conventions, and for other purposes", approved 



2 

1 July 5, 1946, commonly known as the Lanham Act (15 

2 U.S.C. 1125), is amended by adding at the end the 

3 following: 

4 "(c)(1)(A) Any distributor or network that proposes 

5 to exploit a materially altered motion picture shall — 

6 "(i) make a good faith effort to notify each ar- 

7 tistic author of the motion picture in writing and by 

8 registered mail and in a reasonable amount of time 

9 prior to such exploitation; 

10 "(ii) determine the objections of any artistic au- 

1 1 thor so notified to any material alteration of the mo- 

12 tion picture; 

13 "(iii) determine the objection of any artistic au- 

14 thor so notified by the questionnaire set forth in 

15 paragraph (9) to any type of future material alter- 

16 ations which are in addition to those specifically pro- 

17 posed for the motion picture to be exploited; 

18 "(iv) if any objections under clause (ii) or (iii) 

19 are determined, include the applicable label under 

20 paragraph (6) or (8) in, or affix such label to, all 

21 copies of the motion picture before — 

22 "(I) the pubhc performance of the materi- 

23 ally altered motion picture if it is already in dis- 

24 tribution, or 



•iHR 1248 ja 



10 

3 

1 "(11) the initial distribution of the materi- 

2 ally altered motion picture to any exhibitor or 

3 retail provider; and 

4 "(v) in the event of objections by an artistic au- 

5 thor to any future material alterations, include or 

6 affix such objections to any copy of the motion pic- 

7 ture distributed or transmitted to any exhibitor or 

8 retail provider. 

9 "(B) Whenever a distributor or network exploits a 

10 motion picture which has already been materially altered, 

1 1 such distributor or network shall not be required to satisfy 

12 the requirements of subparagraph (A) (i), (ii), and (iii), 

13 if— 

14 "(i) such distributor or network does not ftir- 

15 ther materially alter such motion picture; and 

16 "(ii) such motion picture was materially altered 

17 by another distributor or network that complied fully 

18 with all of the requirements of subparagraph (A). 

19 "(C)(i) The requirement of a good faith effort under 

20 subparagraph (A)(i) is satisfied if a distributor or network 

21 that has not previously been notified by each artistic au- 

22 thor of a motion picture — 

23 "(I) requests in writing the name and address 

24 of each artistic author of the motion picture from 

25 the appropriate professional guild, indicating a re- 

•HR 1248 IH 



11 

4 

1 sponse date of not earlier than 30 days after the 

2 date of the request, by which the appropriate profes- 

3 sional guild must respond; and 

4 "(11) upon receipt of such information from the 

5 appropriate professional guild within the time speci- 

6 fied in the request, notifies each artistic author of 

7 the motion picture in a reasonable amount of time 

8 before the exploitation of the motion picture by such 

9 network or distributor. 

10 "(ii) The notice to each artistic author under this 

11 paragraph shall contain a specific date, not earlier than 

12 30 days after the date of such notice, by which the individ- 

13 ual so notified shall respond in accordance with subpara- 

14 graph (A)(ii). Failure of the artistic author or the appro- 

1 5 priate professional guild to respond within the time period 

16 specified in the notice shall relieve the distributor or net- 

17 work of all liability under subparagraph (A). 

18 "(D) The requirements of this paragraph for an ex- 

19 hibitor shall be limited to — 

20 "(i) broadcasting, cablecasting, exliibiting, or 

21 distributing all labels required under this section in 

22 their entirety that are included with or distributed 

23 by the network or distributor of the motion picture; 

24 and 



•HR 1248>fH 



12 



5 

1 "(ii) including or affixing a label described in 

2 paragraphs (6) and (8) on a materially altered mo- 

3 tion picture for any material alterations performed 

4 by the exhibitor to which any artistic author has ob- 

5 jected under subparagraph (A)(iii). 

6 "(E)(i) The provisions of this paragraph shall apply 

7 with respect to motion pictures intended for home use 

8 through either retail purchase or rental, except that no 

9 requirement imposed under this paragraph shall apply to 

10 a motion picture which has been packaged for distribution 

11 to retail providers before the effective date of this sub- 

12 section. 

13 "(ii) The obligations under this paragraph of a retail 

14 provider of motion pictures intended for home use shall 

15 be limited to including or distributing all labels required 

16 under this paragraph in their entirety that are affixed or 

17 included by a distributor or network. 

18 "(F) There shall be no consideration in excess of one 

19 dollar given in exchange for an artistic author's waiver of 

20 any objection or waiver of the right to object under this 

21 subsection. 

22 "(2) (A) Any artistic author of a motion picture that 

23 is exploited within the United States who believes he or 

24 she is or is likely to be damaged by a violation of this 

25 subsection may bring a civil action for appropriate relief, 

•HR 1248 IH 



13 



6 

1 as provided in this paragraph, on account of such viola- 

2 tion, without regard to the nationaUty or domicile of the 

3 artistic author. 

4 "(B) (i) In any action under subparagraph (A), the 

5 court shall have power to grant injunctions, according to 

6 the principles of equity and upon such terms as the court 

7 deems reasonable, to prevent the violation of this sub- 

8 section. Any such injunction may include a provision di- 

9 recting the defendant to file with the court and serve on 

10 the plaintiff, within 30 days after the service on the de- 

1 1 fendant of such injunction, or such extended period as the 

12 court may direct, a report in writing under oath setting 

13 forth in detail the manner and form in which the defend- 

14 ant has complied with the injunction. Any such injunction 

15 granted upon hearing, after notice to the defendant, by 

16 any district court of the United States — 

17 "(I) may be served on the parties against whom 

18 such injunction is granted anywhere in the United 

19 States where they may be found; and 

20 "(11) shall be operative and may be enforced by 

21 proceedings to punish for contempt, or otherwise, by 

22 the court by which such injunction was granted, or 

23 by any other United States district court in whose 

24 jurisdiction the defendant may be found. 






14 



7 

1 "(ii) When a violation of any right of an artistic au- 

2 thor is estabhshed in any civil action arising under this 

3 subsection, the plaintiff shall be entitled to the remedies 

4 provided under section 35(a). 

5 "(iii) In any action under subparagraph (A), the 

6 court may order that all film packaging of a materially 

7 altered motion picture (including film packages of motion 

8 pictures intended for home use through either retail pur- 

9 chase or rental) that is the subject of the violation shall 

10 be delivered up and destroyed. 

11 "(C) No action shall be maintained under this para- 

1 2 graph unless — 

13 "(i) it is commenced within 1 year after the 

14 right of action accrues, and 

15 "(ii) if brought by a designee described in para- 

16 graph (5)(A)(ii), it is commenced within the term of 

17 copyright of the motion picture involved. 

18 "(3) Any disclosure requirements imposed under the 

19 common law or statutes of any State respecting the mate- 

20 rial alteration of motion pictures are preempted by this 

21 subsection. 

22 "(4) To facilitate the location of a potentially ag- 

23 grieved party, each artistic author of a motion picture may 

24 notify the copyright owner of the motion picture or any 

25 appropriate professional guild. The professional guilds 

•HR 1248 m 



15 



8 

1 may each maintain a Professional Guild Registry includ- 

2 ing the names and addresses of artistic authors so notify- 

3 ing them and may make available information contained 

4 in a Professional Guild Registry in order to facilitate the 

5 location of any artistic author for purposes of paragraph 

6 (1)(A). No cause of action shall accrue against any profes- 

7 sional guild for failure to create or maintain a Professional 

8 Guild Registry or for any failure to provide information 

9 pursuant to paragraph (l)(A)(i). 

10 "(5) As used in this subsection — 

11 "(A) the term 'artistic author' means — 

12 "(i) the principal director and principal 

13 screenwriter of a motion picture and, to the ex- 

14 tent a motion picture is colorized or its photo- 

15 graphic images materially altered, the principal 

16 cinematographer of the motion picture; and 

17 "(ii) a person designated by an individual 

18 described in clause (i), if the designation is 

19 made in writing and signed by such individual; 

20 "(B) the term 'colorize' means to add color, by 

21 whatever means, to a motion picture originally made 

22 in black and white, and the term 'colorization' 

23 means the act of colorizing; 

24 "(C) the term 'distributor'— 



•HR 1248 IH 



16 



9 

1 "(i) means any person, vendor, or syn- 

2 dicator who engages in the wholesale distribu- 

3 tion of motion pictures to any exhibitor, net- 

4 work, retail provider, or other person who pub- 

5 licly performs motion pictures by means of any 

6 technology, and 

7 "(ii) does not include laboratories or other 

8 providers of technical services to the motion pic- 

9 ture, video, or television industry; 

10 "(D) the term 'editing' means the purposeful or 

11 accidental removal of existing material or insertion 

12 of new material; 

13 "(E) the term 'exhibitor' means any local 

14 broadcast station, cable system, airline, motion pic- 

15 ture theater, or other person that publicly performs 

16 a motion picture by means of any technology; 

17 "(F) the term 'exploit' means to exhibit publicly 

18 or offer to the public through sale or lease, and the 

19 , term 'exploitation' means the act of exploiting; 

20 "(G) the term 'film' or 'motion picture' 

21 means — 

22 "(i) a theatrical motion picture, after its 

23 publication, of 60 minutes duration or greater, 

24 intended for exhibition, public performance, 

25 public sale or lease, and 

•HR 1248 IH 



17 

10 

1 "(ii) does not include episodic television 

2 programs of less than 60 minutes duration (ex- 

3 elusive of commercials), motion pictures pre- 

4 pared for private commercial or industrial pur- 

5 poses, or advertisements; 

6 "(H) the term Uexiconning' means altering the 

7 sound track of a motion picture to conform the 

8 speed of the vocal or musical portion of the motion 

9 picture to the visual images of the motion picture, 

10 in a case in which the motion picture has been the 

1 1 subject of time compression or expansion; 

12 "(I) the terms 'materially alter' and 'material 

13 alteration' — 

14 "(i) refer to any change made to a motion 

15 picture; 

16 "(ii) include, but are not limited to, the 

17 processes of colorization, lexiconning, time com- 

18 pression or expansion, panning and scanning, 

19 and editing; and 

20 "(iii) do not include insertions for commer- 

21 cial breaks or public service announcements, ed- 

22 iting to comply with the requirements of the 

23 Federal Communications Commission (in this 

24 subparagraph referred to as the 'FCC'), trans- 

25 fer of film to videotape or any other secondary 

•HR 1248 IH 



18 

11 

1 media preparation of a motion picture for for- 

2 eign distribution to the extent that subtitling 

3 and editing are Umited to those alterations 

4 made under foreign standards which are no 

5 more stringent than existing FCC standards, or 

6 activities the purpose of which is the restoration 

7 of the motion picture to its original version; 

8 "(J) the term 'network' means any person who 

9 distributes motion pictures to broadcasting stations 

10 or cable systems on a regional or national basis for 

1 1 public performance on an interconnected basis; 

12 "(K) the term 'panning and scanning' means 

13 the process by which a motion picture, composed for 

14 viewing on theater screens, is adapted for viewing on 

15 television screens by modification of the ratio of 

16 width to height of the motion picture and the selec- 

17 tion, by a person other than the principal director of 

18 the motion picture, of some portion of the entire pic- 

19 ture for viewing; 

20 "(L) the term 'professional guild' means — 

21 "(i) in the case of directors, the Directors 

22 Guild of America (DGA); 

23 "(ii) in the case of screenwriters, the Writ- 

24 ers Guild of America-West (WGA-W) and the 

25 Writers Guild of America-East (WGA-E); and 

•HR 1248 IH 



19 

12 

1 "(iii) in the case of cinematographers, the 

2 International Photographers Guild (IPG), and 

3 the American Society of Cinematographers 

4 (ASC); 

5 "(M) the term 'Professional Guild Registry' 

6 means a list of names and addresses of artistic au- 

7 thors that is readily available from the files of a pro- 

8 fessional guild; 

9 "(N) the term 'publication' means, with respect 

10 to a motion picture, the first paid public exhibition 

11 of the work other than previews, trial runs, and fes- 

12 tivals; 

13 "(O) the term 'retail provider' means the pro- 

14 prietor of a retail outlet that sells or leases motion 

15 pictures for home use; 

16 "(P) the term 'secondary media' means any me- 

17 dium, including, but not Hmited to, video cassette or 

18 video disc, other than television broadcast or theat- 

19 rical release, for use on which motion pictures are 

20 sold, leased, or distributed to the public; 

21 "(Q) the term 'syndicator' means any person 

22 who distributes a motion picture to a broadcast tele- 

23 vision station, cable television system, or any other 

24 means of distribution by which programming is de- 

25 livered to television viewers; 

•HR 1248 IH 



20 



13 

1 "(R) the terms 'time compression' and 'time ex- 

2 pansion' mean the alteration of the speed of a mo- 

3 tion picture or a portion thereof with the result of 

4 shortening or lengthening the running time of the 

5 motion picture; and 

6 "(S) the term 'vendor' means the wholesaler or 

7 packager of a motion picture which is intended for 

8 wholesale distribution to retail providers. 

9 "(6) (A) A label for a materially altered version of a 

10 motion picture intended for public performance or home 

11 use shall consist of a panel card immediately preceding 

12 the commencement of the motion picture, which bears one 

13 or more of the following statements, as appropriate, in leg- 

14 ible type and displayed on a conspicuous and readable 

15 basis: 

16 '"THIS FILM IS NOT THE VERSION ORIGI- 

17 NALLY RELEASED. mins. and sees. 

18 have been cut [or, if appropriate, added]. The director, 

19 , and 

20 screenwriter, , object because this 

21 alteration changes the narrative and/or characterization. 

22 It has (also) been panned and scanned. The director and 

23 cinematographer, , object be- 

24 cause this alteration removes visual information and 

25 changes the composition of the images. It has (also) been 

•HR 1248 IH 



21 

14 

1 colorized. Colors have been added by computer to the 

2 original black and white images. The director and cine- 

3 matographer object to this alteration because it eliminates 

4 the black and white photography and changes the photo- 

5 graphic images of the actors. It has (also) been electroni- 

6 cally speeded up (or slowed down). The director objects 

7 because this alteration changes the pace of the perform- 

8 anees.' 

9 "(B) A label for a motion picture that has been mate- 

10 rially altered in a manner not described by any of the label 

11 elements set forth in subparagraph (A) shall contain a 

12 statement similar in form and substance to those set forth 

13 in subparagraph (A) which accurately describes the mate- 

1 4 rial alteration and the objection of the artistic author. 

15 "(7) A label for a motion picture which has been ma- 

16 terially altered in more than one manner, or of which an 

17 individual served as more than one artistic author, need 

1 8 only state the name of the artistic author once, in the first 

19 objection of the artistic author so listed. In addition, a 

20 label for a motion picture which has been materially al- 

21 tered in more than one manner need only state once, at 

22 the beginning of the label: 'THIS FILM IS NOT THE 

23 VERSION ORIGINALLY RELEASED.'. 

24 "(8) A label for a film package of a materially altered 

25 motion picture shall consist of — 



22 

15 

1 "(A) an area of a rectangle on the front of the 

2 package which bears, as appropriate, one or more of 

3 the statements Usted in paragraph (6) in a conspicu- 

4 ous and legible type in contrast by typography, lay- 

5 out, or color with other printed matter on the pack- 

6 age; and 

7 "(B) an area of a rectangle on the side of the 

8 package which bears, as appropriate, one or more of 

9 the statements listed in paragraph (6) in a conspicu- 

10 ous and legible type in contrast by typography, lay- 

11 out, or color with other printed matter on the pack- 

12 age. 

13 "(9) The questionnaire required under paragraph 

14 (l)(A)(iii) shall consist of the following statement and re- 

15 lated questions: 

16 " 'In order to conform [insert name of motion 

17 picture], of which you are an "artistic author", to 

18 ancillary media such as television, airline exhibition, 

19 video cassettes, video discs, or any other media, do 

20 you object to: 

21 "'(a) Editing (purposeful or accidental deletion or 

22 addition of program material)? 

23 Yes No 

24 "'(b) Time compression/time expansion/lexiconning? 

25 Yes No 

•HR 1248 IH 



23 



16 

1 " '(c) Panning and scanning? 

2 Yes No 



3 " '(d) Colorization, if the motion picture was origi- 

4 nally made in black and white? 

5 Yes No '." 

6 SEC. 4. EFFECTIVE DATE. 

7 This Act and the amendments made by this Act shall 

8 take effect 180 days after the date of the enactment of 

9 this Act. 

O 



•HR IMS ipi- 



24 



104th congress 
1st Session 



H.R.1734 



To reauthorize the National Film Preservation Board, and for other purposes. 



IN THE HOUSE OF REPRESENTATIVES 

May 25, 1995 
Mr. MOORHEAD (for himself, Mr. CoBLE, and Mr. BOXO) introduced the fol- 
lowing bill; which was referred to the Committee on the Judiciary, and 
in addition to the Committee on House Oversight, for a period to be sub- 
sequently determined by the Speaker, in each case for consideration of 
such provisions as fall \vithin the jurisdiction of the committee concerned 



A BILL 

To reauthorize the National Film Preservation Board, and 
for other purposes. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 TITLE I— REAUTHORIZATION OF 

4 THE NATIONAL FILM PRESER- 

5 VATION BOARD 

6 SEC. 101. SHORT TITLE. 

7 This title may be cited as the "National Film Preser- 

8 vationActof 1995". 



25 



2 

1 SEC. 102. NATIONAL FILM REGISTRY OF THE LIBRARY OF 

2 CONGRESS. 

3 The Librarian of Congress (hereafter in this Act re- 

4 ferred to as the "Librarian") shall continue the National 

5 Film Registry established and maintained under the Na- 

6 tional Film Preservation Act of 1988 (Public Law 100- 

7 446), and the National Film Preservation Act of 1992 

8 (Public Law 102-307) pursuant to the provisions of this 

9 title, for the purpose of maintaining and preserving films 

10 that are culturally, historically, or aesthetically significant. 

1 1 SEC. 103. DUTIES OF THE LIBRARIAN OF CONGRESS. 

12 (a) Powers. — 

13 (1) In general. — The Librarian shall, after 

14 consultation with the Board established pursuant to 

15 section 104 — 

16 (A) continue the implementation of the 

17 comprehensive national film preservation pro- 

18 gram for motion pictures established under the 

19 National Film Preservation Act of 1992, in con- 

20 junction with other film archivists, educators 

21 and historians, copyright ovmers, film industry 

22 representatives, and others involved in activities 

23 related to film preservation, taking into account 

24 the objectives of the national film preservation 

25 study and the comprehensive national plan con- 

•HR 1734 m 



26 

3 

1 ducted under the National Film Preservation 

2 Act of 1992. This program shall— 

3 (i) coordinate activities to assure that 

4 efforts of archivists and copyright owners, 

5 and others in the public and private sector, 

6 are effective and complementary; 

7 (ii) generate public awareness of and 

8 support for these activities; 

9 (iii) increase accessibility of films for 

10 educational purposes; and 

11 (iv) undertake studies and investiga- 

12 tions of film preservation activities as 

13 needed, including the efficacy of new tech- 

14 nologies, and recommend solutions to im- 

15 prove these practices; 

16 (B) establish criteria and procedures under 

17 which films may be included in the National 

18 Film Registry, except that no film shall be eligi- 

19 ble for inclusion in the National Film Registry 

20 until 10 years after such film's first publication; 

21 (C) establish procedures under which the 

22 general public may make recommendations to 

23 the Board regarding the inclusion of films in 

24 the National Film Registry; and 



•HR 1734 IH 



27 



4 

1 (D) determine which films satisfy the cri- 

2 teria estabhshed under subparagraph (B) and 

3 quahfy for inclusion in the National Film Reg- 

4 istry, except that the Librarian shall not select 

5 more than 25 films each year for inclusion in 

6 the Registry. 

7 (2) Publication of films ix registry. — The 

8 Librarian shall publish in the Federal Register the 

9 name of each film that is selected for inclusion in 

10 the National Film Registry. 

11 (3) Seal. — The Librarian shall provide a seal 

12 to indicate that a film has been included in the Na- 

13 tional Film Registry and is the Registry version of 

14 that film. The Librarian shall establish guidelines 

15 for approval of the use of the seal in accordance 

16 with subsection (b). 

17 (b) Use of Seal. — The seal provided under sub- 

18 section (a)(3) may only be used on film copies of the Reg- 

19 istry version of a film. Such seal may be used only after 

20 the Librarian has given approval to those persons seeking 

21 to apply the seal in accordance with the guidelines under 

22 subsection (a)(3). In the case of copyrighted works, only 

23 the copyright owner or an authorized licensee of the copy- 

24 right owner may place or authorize the placement of the 

25 seal on any film copy of a Registry version of a film se- 

•HR 1734 IH 



28 

5 

1 lected for inclusion in the National Film Registry, and the 

2 Librarian may place the seal on any film copy of the Reg- 

3 istry version of any film that is maintained in the National 

4 Film Registry Collection in the Library of Congress. Any- 

5 one authorized to place the seal on any film copy of any 

6 Registry version of a film may accompany such seal with 

7 the following language: "This film was selected for inclu- 

8 sion in the National Film Registry by the National Film 

9 Presei'vation Board of the Library of Congress because of 

10 its cultural, historical, or aesthetic significance.". 

1 1 SEC. 104. NATIONAL FILM PRESERVATION BOARD. 

12 (a) Number and Appointment. — 

13 (1) Members. — The Librarian shall estabhsh 

14 in the Library of Congress a National Film Preser- 

15 vation Board to be comprised of 20 members, who 

16 shall be selected by the Librarian in accordance with 

17 this section. Subject to subparagraphs (C) and (N), 

18 the Librarian shall request each organization listed 

19 in subparagraphs (A) through (Q) to submit a list 

20 of 3 candidates qualified to serve as a member of the 

21 Board. Except for the members-at-large appointed 

22 under subparagraph (2), the Librarian shall appoint 

23 one member from each such list submitted by such 

24 organizations, and shall designate from that list an 

25 alternate who may attend at Board expense those 

•HR 1734 Itf 



29 



6 

1 meetings to which the individual appointed to the 

2 Board cannot attend. The organizations are the fol- 

3 lowing: 

4 (A) The Academy of Motion Picture Arts 

5 and Sciences. 

6 (B) The Directors Guild of America. 

7 (C) The Writers Guild of America. The 

8 Writers Guild of America East and the Writers 

9 Guild of America West shall each nominate 

10 three candidates, and a representative from one 

11 organization shall be selected as the member 

12 and a representative from the other organiza- 

13 tion as the alternate. 

14 (D) The National Society of Film Critics. 

15 (E) The Society for Cinema Studies. 

16 (F) The American Film Institute. 

17 (G) The Department of Theatre, Film and 

18 Television of the College of Fine Arts at the 

19 University of California, Los Angeles. 

20 (H) The Department of Film and Tele- 

21 vision of the Tisch School of the Arts at New 

22 York University. 

23 (I) The University Film and Video Asso- 

24 ciation. 



•HR 1734 IH 



0'a_'>C7 r»«? n 



30 

7 

1 (J) The Motion Picture Association of 

2 America. 

3 (K) The Alhance of Motion Picture and 

4 Television Producers. 

5 (L) The Screen Actors Guild of America. 

6 (M) The National Association of Theater 

7 Owners. 

8 (N) The American Society of Cinematog- 

9 raphers and the International Photographers 

10 Guild, which shall jointly submit one list of 3 

11 candidates from which a member and alternate 

12 will be selected. 

13 (0) The United States Members of the 

14 International Federation of Film Archives. 

15 (P) The Association of Moving Image Ar- 

16 chivists. 

17 (Q) The Society of Composers and 

18 Lyricists. 

19 (2) , Members- AT-LARGE. — In addition to the 

20 Members appointed under paragraph (1), the Li- 

21 brarian shall appoint up to 3 members-at-large. The 

22 Librarian shall also select an alternate for each 

23 member at-large, who may attend at Board expense 

24 those meetings which the member at-large cannot 

25 attend. 

•HR 1734 IH 



31 

8 

1 (b) Chair. — The Librarian shall appoint one member 

2 of the Board to serve as Chair. 

3 (c) Term of Office. — 

4 (1) Terms. — The term of each member of the 

5 Board shall be 5 years, except that there shall be no 

6 limit to the number of terms that any individual 

7 member may serve. 

8 (2) Removal of member or orgaxiza- 

9 TION. — The Librarian shall have the authority to re- 

10 move any member of the Board, or the organization 

11 listed in subsection (a) such member represents, if 

12 the member, or organization, over any consecutive 2- 

13 year period, fails to attend at least one regularly 

14 scheduled Board meeting. 

15 (3) Vacancies. — A vacancy in the Board shall 

16 be filled in the manner in which the original appoint- 

17 ment was made under subsection (a), except that the 

18 Librarian may fill the vacancy from a list of can- 

19 didates previously submitted by the organization or 

20 organizations involved. Any member appointed to fill 

21 a vacancy before the expiration of the term for 

22 which his or her predecessor was appointed shall be 

23 appointed for the remainder of such term. 

24 (d) Quorum. — 11 members of the Board shall con- 

25 stitute a quorum but a lesser number may hold hearings. 

•HR 1734 IH 



32 



9 

1 (e) Basic Pay. — Members of the Board shall serve 

2 without pay. While away from their home or regular places 

3 of business in the performance of functions of the Board, 

4 members of the Board shall be allowed travel expenses, 

5 including per diem in lieu of subsistence, in the same man- 

6 ner as persons employed intermittently in Government 

7 service are allowed expenses under section 5701 of title 

8 5, United States Code. 

9 (f) Meetings. — The Board shall meet at least once 

10 each fiscal year. Meetings shall be at the call of the Li- 

1 1 brarian. 

12 (g) Conflict op Interest. — The Librarian shall 

13 establish rules and procedures to address any potential 

14 conflict of interest between a member of the Board and 

15 responsibilities of the Board. 

1 6 SEC. 105. RESPONSmiLmES AND POWERS OF BOARD. 

17 (a) In General. — The Board shall review nomina- 

18 tions of films submitted to it for inclusion in the National 

19 Film Registry and consult with the Librarian, as provided 

20 in section 103, wdth respect to the inclusion of such films 

21 in the Registry and the preservation of these and other 

22 films that are culturally, historically, or aesthetically sig- 

23 nificant. 

24 (b) Nomination of Films. — The Board shall con- 

25 sider, for inclusion in the National Film Registry, nomina- 



HR1734ffi 



33 



10 

1 tions submitted by the general public as well as represent- 

2 atives of the film industry, such as the guilds and societies 

3 representing actors, directors, screenwriters, cinematog- 

4 raphers, and other creative artists, producers, and film 

5 critics, archives and other film preservation organizations, 

6 and representatives of academic institutions with film 

7 study programs. The Board shall nominate not more than 

8 25 films each year for inclusion in the Registry. 

9 (c) Powers. — 

10 (1) In general. — The Board may, for the pur- 

11 pose of carrying out its duties, hold such hearings, 

12 sit and act at such times and places, take such testi- 

13 mony, and receive such evidence, as the Librarian 

14 and the Board consider appropriate. 

15 (2) Service on foundation. — Two sitting 

16 members of the Board shall be appointed by the Li- 

17 brarian, and shall serve, as Board members of the 

18 National Film Preservation Foundation, in accord- 

19 ance with section 203. 

20 SEC. 106. NATIONAL FILM REGISTRY COLLECTION OF THE 

21 LIBRARY OF CONGRESS. 

22 (a) Acquisition of Archival Quality Copies. — 

23 The Librarian shall endeavor to obtain, by gift from the 

24 owner, an archival quality copy of the Registry version of 

25 each film included in the National Film Registry. When- 

•HR 1734 ta 



34 

11 

1 ever possible, the Librarian shall endeavor to obtain the 

2 best surviving materials, including preprint materials. 

3 Copyright owners and others possessing copies of such 

4 materials are strongly encouraged, to further the preserva- 

5 tion purposes of this Act, to provide preprint and other 

6 archival elements to the Library of Congress. 

7 (b) Additional Materials. — The Librarian shall 

8 endeavor to obtain, for educational and research purposes, 

9 additional materials related to each film included in the 

10 National Film Registry, such as background materials, 

1 1 production reports, shooting scripts (including continuity 

12 scripts) and other similar materials. 

13 (c) Property of United States. — All copies of 

14 films on the National Film Registry that are received as 

15 gifts or bequests by the Librarian and other materials re- 

16 ceived by the Librarian under subsection (b), shall become 

17 the property of the United States Government, subject to 

18 the provisions of title 17, United States Code. 

19 (d) Natio.xal Film Registry Collection. — ^All 

20 copies of films on the National Film Registry that are re- 

21 ceived by the Librarian under subsection (a), and other 

22 materials received by the Librarian under subsection (b), 

23 shall be maintained in the Library of Congress and be 

24 known as the "National Film Registiy Collection of the 

25 Library of Congress". The Librarian shall, by regulation, 

•kR 1734 Ob 



35 

12 

1 and in accordance with title 17, United States Code, pro- 

2 vide for reasonable access to the films and other materials 

3 in such collection for scholarly and research purposes. 

4 SEC. 107. SEAL OF THE NATIONAL FILM REGISTRY. 

5 (a) Use of the Seal. — 

6 (1) Prohibition on distribution and exhi- 

7 BITION. — No person shall knowingly distribute or ex- 

8 hibit to the public a version of a film or any copy 

9 of a film which bears the seal described in section 

10 103(a)(3) if such film— 

11 (A) is not included in the National Film 

12 Registry; or 

13 (B) is included in the National Film Reg- 

14 istry, but such film or film copy has not been 

15 approved for use of the seal by the Librarian 

16 pursuant to section 103(a)(1)(D). 

17 (2) Prohibition on promotion. — No person 

18 shall knowingly use the seal described in section 

19 103(a)(3) to promote any version of a film or film 

20 copy other than a Registry version. 

21 (b) Effective Date op the Seal. — The use of the 

22 seal described in section 103(a)(3) shall be effective for 

23 each film after the Librarian publishes in the Federal Reg- 

24 ister, in accordance with section 103(a)(2), the name of 



•HR 1)34 m 



36 

13 

1 that film as selected for inclusion in the National Film 

2 Registry. 

3 SEC. 108. REMEDIES. 

4 (a) Jurisdiction. — The several district courts of the 

5 United States shall have jurisdiction, for cause shown, to 

6 prevent and restrain violations of section 107(a). 

7 (b) Relief. — 

8 (1) Removal op seal. — Except as provided in 

9 paragraph (2), relief for violation of section 107(a) 

10 shall be limited to the removal of the seal of the Na- 

11 tional Film Registry from the film involved in the 

12 violation. 

13 (2) Fine and injunctive relief. — In the 

14 case of a pattern or practice of the willful violation 

15 of section 107(a), the United States district courts 

16 may order a civil fine of not more than $10,000 and 

17 appropriate injunctive relief. 

1 8 sec. 109. LIMITATIONS OF REMEDIES. 

19 The remedies provided in section 108 shall be the ex- 

20 elusive remedies under this title, or any other Federal or 

21 State law, regarding the use of the seal described in sec- 

22 tion 103(a)(3). 



•HR 1734 IH 



37 



14 

1 SEC. 110. STAFF OF BOARD; EXPERTS AND CONSULTANTS. 

2 (a) Staff. — The Librarian may appoint and fix the 

3 pay of such personnel as the Librarian considers appro- 

4 priate to carry out this title. 

5 (b) Experts a.\d Consultants. — The Librarian 

6 may, in carrying out this title, procure temporary and 

7 intermittent services under section 3109(b) of title 5, 

8 United States Code, but at rates for individuals not to 

9 exceed the daily equivalent of the maximum rate of basic 

10 pay payable for GS-15 of the General Schedule. In no case 

1 1 may a member of the Board or an alternate be paid as 

12 an expert or consultant under this section. 

13 SEC. 111. DEFINITIONS. 

1 4 As used in this title — 

15 (1) the term "Librarian" means the Librarian 

16 of Congress; 

17 (2) the term "Board" means the National Film 

18 Preservation Board; 

19 (3) the term "film" means a "motion picture" 

20 as defined in section 101 of title 17, United States 

21 Code, except that such term does not include any 

22 work not originally fixed on film stock, such as a 

23 work fixed on videotape or laser disk; 

24 (4) the term "publication" means "publication" 

25 as defined in section 101 of title 17 United States 

26 Code; and 

•HR 1734 m 



38 

15 

1 (5) the term "Registry version" means, with re- 

2 spect to a film, the version of a film first published, 

3 or as complete a version as bona fide preservation 

4 and restoration activities by the Librarian, an archi- 

5 vist other than the Librarian, or the copyright owner 

6 can compile in those cases where the original mate- 

7 rial has been irretrievably lost. 

8 SEC. 112. AUTHORIZATION OF APPROPRIATIONS. 

9 There are authorized to be appropriated to the Li- 

10 brarian such sums as may be necessary to carry out the 

1 1 purposes of this title, but in no fiscal year shall such sum 

12 exceed $250,000. 

13 SEC. 113. EFFECTIVE DATE. 

14 The provisions of this title shall be effective for 10 

15 years beginning on the date of the enactment of this Act. 

16 The provisions of this title shall apply to any copy of any 

17 film, including those copies of films selected for inclusion 

18 in the National Film Registry under the National Film 

19 Preservation Act of 1988 and the National Film Preserva- 

20 tion Act of 1992, except that any film so selected under 

21 either Act shall be deemed to have been selected for the 

22 National Film Registry under this title. 

23 SEC. 114. REPEAL. 

24 The National Film Preservation Act of 1992 (2 

25 U.S.C. 179 and following) is repealed. 

•HR 1734 IH 



39 

16 

1 TITLE II— THE NATIONAL FILM 

2 PRESERVATION FOUNDATION 

3 ACT 

4 SEC. 201. SHORT TITLE. 

5 This title may be cited as the "National Film Preser- 

6 vation Foundation Act". 

7 SEC. 202. ESTABLISHMENT AND PURPOSE OF FOUNDATION. 

8 (a) Establishment. — There is established the Na- 

9 tional Film Preservation Foundation (hereafter in this 

10 title referred to as the "Foundation"). The Foundation 

11 is a charitable and nonprofit corporation and is not an 

12 agency or establishment of the United States. 

13 (b) Purposes. — The purposes of the Foundation 

14 are — 

15 (1) to encourage, accept, and administer private 

16 gifts to promote and ensure the preservation and 

17 public accessibility of the nation's film heritage held 

18 at the Library of Congress and other public and 

19 non-profit archives throughout the United States; 

20 (2) to further the goals of the Library of Con- 

21 gress and the National Film Preservation Board in 

22 connection vdth their activities under the National 

23 Film Preservation Act; and 

24 (3) to undertake and conduct other activities, 

25 alone or in cooperation with other film related insti- 

•HR 1734 IH 



40 

17 

1 tutions and organizations, as will further the preser- 

2 vation and public accessibility of films made in the 

3 United States, particularly those not protected by 

4 private interests, for the benefit of present and fu- 

5 ture generations of Americans. 

6 SEC. 203. BOARD OF DIRECTORS OF THE FOUNDATION. 

7 (a) Establishment and Membership. — The 

8 Foundation shall have a governing Board of Directors 

9 (hereafter in this title referred to as the "Board"), which 

10 shall consist of 9 Directors, each of whom shall be a Unit- 

1 1 ed States citizen and at least 6 of whom must be knowl- 

12 edgeable or experienced in film production, distribution, 

13 preservation or restoration, including 2 who shall be sit- 

14 ting members of the National Film Preservation Board. 

15 These 6 members of the Board shall, to the extent prac- 

16 ticable, represent diverse points of views from the film 

17 community, including motion picture producers, creative 

18 artists, nonprofit and public archivists, historians, film 

19 critics, theater owners, and laboratory and university per- 

20 sonnel. The Librarian of Congress (hereafter in this title 

21 referred to as the "Librarian") shall be an ex officio non- 
22 voting member of the Board. Appointment to the Board 

23 shall not constitute emplojTnent by, or the holding of an 

24 office of, the United States for the purpose of any Federal 

25 law. 

•HR li94 IH' 



41 

18 

1 (b) Appointment and Terms. — ^Within 90 days 

2 after the date of the enactment of this Act, the Librarian 

3 shall appoint the Directors of the Board. Each Director 

4 shall be appointed for a term of 5 years. A vacancy on 

5 the Board shall be filled, within 60 days after the vacancy 

6 occurs, in the manner in which the original appointment 

7 was made. No individual may serve more than 2 consecu- 

8 tive terms as a Director. 

9 (c) Chair. — The initial Chair shall be appointed by 

10 the Librarian from the membership of the Board for a 

1 1 2 -year term, and thereafter shall be appointed and re- 

12 moved in accordance with the Foundation's bylaws. 

13 (d) Quorum. — ^A majority of the current membership 

14 of the Board shall constitute a quorum for the transaction 

15 of business. 

16 (e) Meetings. — The Board shall meet at the call of 

17 the Librarian or the Chair at least once a year. If a Direc- 

18 tor misses 3 consecutive regularly scheduled meetings, 

19 that individual may be removed from the Board by the 

20 Librarian, and that vacancy shall be filled in accordance 

21 with subsection (b). 

22 (f) Reimbursement of Expenses. — Members of 

23 the Board shall serve without pay, but may be reimbursed 

24 for the actual and necessary traveling and subsistence ex- 



•HR 1734 m 



42 

19 

1 penses incurred by them in the performance of the duties 

2 of the Foundation. 

3 (g) General Powers. — 

4 (1) Organization op foundation. — The 

5 Board may complete the organization of the Foun- 

6 dation by — 

7 (A) appointing, removing, and replacing of- 

8 ficers, except as provided for in paragraph 

9 (2)(B); 

10 (B) adopting a constitution and bylaws 

11 consistent with the purpose of the Foundation 

1 2 and the provisions of this title; and 

13 (C) undertaking such other acts as may be 

14 necessary to carry out the provisions of this 

15 title. 

16 (2) Limitation on appointment op employ- 

17 EES. — The following limitations apply with respect 

18 to the appointment of employees of the Foundation: 

19 (A) Employees may not be appointed until 

20 the Foundation has sufficient funds to pay 

21 them for their services. Except as provided in 

22 subparagraph (B), employees of the Foundation 

23 shall be appointed, removed, and replaced by 

24 the Secretary of the Board. All employees (in- 

25 eluding the Secretary of the Board) shall be ap- 

•HR 1734 IH 



43 

20 

1 pointed and removed without regard to the pro- 

2 visions of title 5, United States Code, governing 

3 appointments in the competitive service, and 

4 may be paid without regard to the provisions of 

5 chapter 51 and subchapter III of chapter 53 of 

6 such title relating to classification and General 

7 Schedule pay rates, except that no individual so 

8 appointed may receive pay in excess of the an- 

9 nual rate of basic pay in effect for gr-ade GS- 

10 15 of the General Schedule. Neither the Board, 

1 1 nor any of the employees of the Foundation, in- 

12 eluding the Secretary of the Board, shall be 

13 construed to be employees of the Library of 

14 Congress. 

15 (B) The first employee appointed shall be 

16 the Secretary of the Board. The Secretary shall 

17 be appointed, and may be removed by, the Li- 

18 brarian. 

19 (C) The Secretary of the Board shall— 

20 (i) serve as its executive director, and 

21 (ii) be knowledgeable and experienced 

22 in matters relating to film preservation 

23 and restoration activities, financial man- 

24 agement, and fund-raising. 



•HR 1734 m 



44 
21 

1 SEC. 204. RIGHTS AND OBLIGATIONS OF THE FOUNDATION 

2 (a) General. — The Foundation — 

3 (1) shall have perpetual succession; 

4 (2) may conduct business in the several States, 

5 the District of Columbia, and any commonwealth, 

6 territory, or possession of the United States; 

7 (3) shall have its principal offices in the Dis- 

8 trict of Columbia; and 

9 (4) shall at all times maintain a designated 

10 agent authorized to accept service of process for the 

1 1 Foundation. 

12 The serving of notice to, or service of process upon, the 

13 agent required under paragraph (4), or mailed to the busi- 

14 ness address of such agent, shall be deemed as service 

15 upon or notice to the Foundation. 

16 (b) Seal. — The Foundation shall have an official seal 

17 selected by the Board which shall be judicially noticed. 

18 (c) Powers. — To carry out its purposes under sec- 

19 tion 202, the Foundation shall have, in addition to the 

20 powers otherwise given it under this title, the usual powers 

21 of a corporation acting as a trvistee in the District of Co- 

22 lumbia, including the power — 

23 (1) to accept, receive, solicit, hold, administer, 

24 and use any gift, devise, or bequest, either absolutely 

25 or in trust, of real or personal property or any in- 

26 ^ come* -therefrom or other interest therein; 

•HR 1734 IH 



45 

22 

1 (2) to acquire by purchase or exchange any real 

2 or personal property or interest therein; 

3 (3) unless otherwise required by the instrument 

4 of transfer, to sell, donate, lease, invest, reinvest, re- 

5 tain, or otherwise dispose of any property or income 

6 therefrom; 

7 (4) to borrow money and issue bonds, deben- 

8 tures, or other debt instruments; 

9 (5) to sue and be sued, and complain and de- 

10 fend itself in any court of competent jurisdiction, ex- 

11 cept that the Directors of the Board shall not be 

12 personally liable, except for gross negligence; 

13 (6) to enter into contracts or other arrange- 

14 ments with public agencies and private organizations 

15 and persons and to make such pajnnents as may be 

16 necessary to carry out its functions; and 

17 (7) to do any and all acts necessary and proper 

18 to carry out the purposes of the Foundation. 

19 A gift, devise, or bequest may be accepted by the Founda- 

20 tion even though it is encumbered, restricted, or subject 

21 to beneficial interests of private persons, if any current 

22 or future interest therein is for the benefit of the Founda- 

23 tion. 



•HR 1734 IH 



46 

23 

1 SEC. 205. ADMINISTRATIVE SERVICES AND SUPPORT. 

2 The Librarian may provide personnel, facilities, and 

3 other administrative services to the Foundation, including 

4 reimbursement of expenses under section 203, not to ex- 

5 ceed the current per diem rates for the Federal Govern- 

6 ment, and may accept reimbursement therefor. Amounts 

7 so reimbursed shall be deposited in the Treasury to the 

8 credit of the appropriations then current and chargeable 

9 for the cost of providing such services. 

1 SEC. 206. VOLUNTEER STATUS. 

1 1 The Librarian may accept, witliout regard to the civil 

12 service classification laws, rules, or regulations, the serv- 

13 ices of the Foundation, the Board, and other officers and 

14 employees of the Board, without compensation from the 

15 Library of Congress, as volunteers in the performance of 

16 the functions authorized in this title. 

17 SEC. 207. AUDITS, REPORT REQUIREMENTS, AND PETITION 

18 OF ATTORNEY GENERAL, FOR EQUITABLE 

19 RELIEF. 

20 (a) Audits. — The Foundation shall be treated as a 

21 private corporation established under P^ederal law for pur- 

22 poses of the Act entitled "An Act to provide for audit of 

23 accounts of private corporations established under Federal 

24 law.", approved August 30, 1964 (36 U.S.C. 1101-1103). 

25 (b) Report. — The Foundation shall, as soon as prac- 

26 tieable after the end of each fiscal year, transmit to the 

•HR 1734 tH 



47 

24 

1 Congress a report of its proceedings and activities during 

2 such year, including a full and complete statement of its 

3 receipts, expenditures, and investments. 

4 (c) Relief with Respect to Certain Founda- 

5 TiON Acts or Failure to Act. — If the Foundation — 

6 (1) engages in, or threatens to engage in, any 

7 act, practice, or policy that is inconsistent with its 

8 purposes set forth in section 202(b), or 

9 (2) refuses, fails, or neglects to discharge its 

10 obligations under this title, or threatens to do so, 

1 1 the Attorney General of the United States may file a peti- 

12 tion in the United States District Court for the District 

1 3 of Columbia for such equitable relief as may be necessary 

14 or appropriate. 

1 5 SEC. 208. UNITED STATES RELEASE FROM LIABILITY. 

16 The United States shall not be liable for any debts, 

17 defaults, acts, or omissions of the Foundation, nor shall 

18 the full faith and credit of the United States extend to 

19 any obligation of the Foundation. 

20 SEC. 209. AUTHORIZATION OF APPROPRIATIONS. 

21 (a) Authorization. — There are authorized to be ap- 

22 propriated to the Library of Congress not to exceed 

23 $2,000,000 for each of the fiscal years 1996 through 

24 2005, to be made available to the Foundation to match 

25 private contributions (whether in currency, services, or 

•HH .1734 IH 



48 

25 

1 property) made to the Foundation by private persons and 

2 State and local governments. 

3 (b) Administrative Expenses. — No Federal funds 

4 authorized under this section may be used by the Founda- 

5 tion for administrative expenses of the Foundation, includ- 

6 ing for salaries, travel, and transportation expenses, and 

7 other overhead expenses. 

O 



•HR 1734 IH 



49 

Mr. MOORHEAD. This morning, the ranking minority member of 
the full committee, Mr. Conyers, is on his way. I left him just a 
few minutes ago. And he will have, I am sure, an opening state- 
ment. But in the meanwhile, our good friend, Howard Berman, who 
represents a district very much involved in the film industry, just 
to the west of my district, is here this morning and I am sure he 
has an opening statement. 

Mr. Berman. Well, it is true I represent a district which has a 
lot of people that work in the film industry and in the entertain- 
ment industry generally. And the only thing I don't have is an 
opening statement. But I do appreciate the hearing on these impor- 
tant issues. 

We have been talking about a lot of them for a long time. And 
it is also very nice to have a hearing so close to home. And so I 
thank you, Mr. Chairman, for scheduling the hearing. And I will 
be active in the question periods, but I don't have anjd^hing particu- 
larly to add right now. 

Mr. MoORHEAD. Another member that is here, and actually the 
first member that arrived here, was Xavier Becerra, who rep- 
resents the district just to the south of us here. He only lives 3 
miles from this courthouse. 

Mr. Becerra. Mr. Chairman, I am pleased that you scheduled 
the hearing 3 miles from my house. It is a lot better than schedul- 
ing them 2,500 miles from my house. And I will just associate my- 
self with all the remarks made by my colleague, Mr. Berman, and 
leave my opening statement as that. 

Mr. MoORHEAD. This morning, we have a very distinguished 
panel before us. Our first witness will be Mr. Jack Valenti, who is 
the president of the Motion Picture Association of America. I have 
had the pleasure of working with him on many occasions. 

Mr. Valenti is a graduate of the University of Houston and Har- 
vard Business School. He cofounded the advertising and political 
consulting agency of Weekly & Valenti. He served as Special As- 
sistant to the President in Lyndon Johnson's White House and be- 
came the third president and CEO of the MPAA in 1966. 

Since that time, Mr. Valenti has presided over many changes in 
the film industry and has authored numerous books and essays. 
We welcome Mr. Valenti. 

I am going to introduce the other three, and then I will have you 
come on first. 

Our second witness will be Ms. Marilyn Bergman, who is the 
president and chairman of the American Society of Composers Au- 
thors and Publishers, or ASCAP. 

Ms. Bergman is a three-time Academy Award winner, a two-time 
Grammy Award winner, and a two-time Emmy Award winner; all 
of those awards. 

She was introduced into the Song Writers Hall of Fame in 1979. 
She and her husband, Alan Bergman, are one of the most respected 
song writing teams in music today. Ms. Bergman is a graduate of 
New York's high school of music and art and of New York Univer- 
sity. 

In 1985, she became the first woman to be elected to the board 
of directors of ASCAP. Ms. Bergman is a member of the executive 
committee of the music branch of the Academy of Motion Pictures 



50 

Arts and Sciences and the board of directors of the National Acad- 
emy of Song Writers and she has recently been appointed to the 
U.S. Department of Commerce's Private Sector Advisory Council of 
the National Information infrastructure. Welcome, Ms. Bergman. 

Our third witness is Mr. Edward Richmond. He is currently the 
curator of the UCLA Film and Television Archives. He is a grad- 
uate of the University of Cincinnati and holds a master's in film 
and television studies from Ohio State University. 

Mr. Richmond worked his way up from laboratory assistant at 
the archives to administrative assistant, assistant director, acting 
director and finally curator. He is the president of the Association 
of Movie Image Archivists and a member of the Archivist Advisory 
Council for the Film Foundation. He also lectures and has written 
several papers on film preservation. Welcome, Mr. Richmond. 

Our fourth witness is Mr. Edward Murphy. Mr. Murphy is the 
president and CEO of National Music Publishers' Association 
[NMPA]. 

Prior to assuming his duties at NMPA, Mr. Murphy served as 
President of the G. Shirmer, Inc., a large American music publish- 
ing house. He serves on the advisory board of the International In- 
tellectual Property Alliance and is a member of the International 
Copyright Panel of the U.S. Advisory Committee on International 
Intellectual Property. 

He founded the International Cop3a'ight Coalition and is sec- 
retary of the National Music Council. Welcome, Mr. Murphy. 

We have written statements from our four witnesses, which I ask 
unanimous consent to be made a part of the record. And I ask that 
you all summarize your statements in 10 minutes or less. 

I ask that the subcommittee hold their questions of all four wit- 
nesses until they have completed their oral presentations. 

We will begin with the testimony of Mr. Valenti. 

STATEMENT OF JACK VALENTI, PRESIDENT AND CEO, 
MOTION PICTURE ASSOCIATION OF AMERICA 

Mr. Valenti. Thank you, Mr. Chairman. I think copyright term 
extension has a very simple, but compelling enticement and that is 
it is very much in the economic interests of the United States at 
a time when the words, "surplus balance of trade," is seldom heard 
in the corridors of Congress, when we are bleeding from trade defi- 
cits, and at a time when our ability to compete in the international 
marketplace is under assault. 

Anything that can be done must be done, then, to amplify the 
ability of American movies and television programs to keep alive 
their marketing dexterity in other countries around the world. 

Europe is already girding its economic loins. They have length- 
ened their copyright term to 70 years plus life of the author. The 
Europeans understand all too clearly what the marketplace is all 
about. And I think in that kind of audiovisual landscape, the Unit- 
ed States has to match Europe. 

It can do so by extending the U.S. copyright term, which will put 
our term span on the same level as the Europeans. Europeans have 
life of the author plus 70 years. That means that we would have 
under works for hire, 95 years as the term extension. 



51 

I want to give you four major reasons which command our atten- 
tion and which certify, I think, the need for copyright term exten- 
sion. 

One, the Berne Convention has a minimum protection time span. 
And that is Ufe of the author plus 50 years. But, under Berne, any 
nation can add additional terms if they choose. But — and this is 
the pivotal point that we have to understand — other Berne coun- 
tries are obligated only to protect the minimum length that Berne 
certifies, the life of the author plus 50. They are not required nor 
would they guard any other country's works beyond what that 
country puts down as its yardstick for term extension, which 
means that when we go to Europe with 50 years — 70 years, that 
is life of the author plus 50, or 70 years for works for hire, we 
would be at a grave disadvantage, that our movies would be in the 
public domain, whereas the European movies would be fully pro- 
tected. That is one reason. 

Two, the minute that American works go into public domain, in 
Europe, our revenues that are brought back to this country as part 
of our surplus balance of trade, which we provision in this country, 
those revenues would be cut off and they would pass into other 
hands, not U.S. producers. 

Three, American creative works are the most popular, the most 
patronized, the most sought after, not only in Europe, but all over 
the world, which is why, and here I have said this over and over 
again, and maybe about the 28th time somebody will recall what 
I have said — and that is that the American movie, television pro- 

fram and home video return to this country annually more than 
4 billion a year in surplus balance of trade. 

If you take all of the products in this country, made or grown, 
manufactured, or those that leap from the brain pan of people like 
Marilyn Bergman and others, everything can be matched, cloned, 
or duplicated by any other country in the world. Argentine wheat 
and Korean steel and Grerman automobiles and Japanese elec- 
tronics. 

But the one product which at this hour has never been dupli- 
cated or matched by any other country in the world is the Amer- 
ican movie. It is a trade prize beyond all imagination. 

The case for copyright term extension, Mr. Chairman, I believe 
is that simple. And I am so pleased that 10 of the members of your 
subcommittee have already cosponsored and I hope that Ms. 
Wheeler will pass along to Congressman Conyers all of these melo- 
dious and triumphant phrases which I am uttering this morning 
because he has not yet signed on as a cosponsor, and I need to per- 
suade him. 

What are the contrary views? If someone comes to me and tries 
to persuade me, I want to know what the upside and the downsides 
are. Some academics plead that the consumer is going to be bene- 
fited if there are more public domain works because public domain 
works would be cheaper, more readily available, and therefore be 
consumer benefits. 

What academics do not know or do not observe is that while an 
American public domain work may be sold more cheaply to some- 
one, in many exhibitors in many international markets, consumers 
are not granted cheaper prices, either here or abroad. Not at all. 



52 

Why? The theater ticket price remains the same, no matter what 
picture is showing. I do not know of any home video store that 
gives you a discount nor do I know of any television station that 
lowers its advertising rates because it happened to buy a program 
more cheaply than did its competitors. That is a fact of life. 

The academics also assert that when copyrighted works lose 
their protection, they become more widely available to the public. 
Again, what the academics do not know are the marketplace real- 
isms which exist. Whatever work is not protected is a work that 
nobody preserves. The quality of the print is soon degraded. And 
there is no one around who is going to invest the money for en- 
hancement. Why? Because there is no longer a financial incentive 
to rehabilitate and preserve because it belongs to everybody and 
therefore it belongs to nobody. 

A public domain work is an orphan. No question about that. No 
one is responsible for its future life. But everyone exploits its use 
until that time certain when it becomes soiled and haggard and 
barren of all of its former virtues. Who then — who then will invest 
the funds required to renovate it and to nourish its future when 
nobody owns it? 

How does the consumer benefit from that scenario? The answer 
is the consumer has no benefit. What the academics offer in numb- 
ing detail are the arcane drudgeries of graphs and charts and ar- 
ithmetical lines that cross a page. But the fact is that all of these 
scholarly works are separated from the real world in which realism 
exists. 

And that brings me now to the fourth reason why it is necessary 
to extend copyright terms. That Congress can, without reaching 
into the pockets of any consumer, magnify the revenue curve of 
copyright owners, which can be delivered back to this country and 
thereby help, maybe modestly, but nonetheless help in the reduc- 
tion of our trade deficit, as well as encouraging the preservation 
and nourishment of what I think is one of America's great, glitter- 
ing trade prizes, the American movie. 

In the global intellectual property world of tomorrow, I think 
competition is going to reach a ferocity unimagined today. And you 
have to understand what intellectual property means to this coun- 
try. The core copyright industries represent intellectual property, 
movies, home video, books, musical recordings and computer soft- 
ware. 

Together they comprise about 4 percent of our gross domestic 
product. About $240 billion. They collect some $45 billion in reve- 
nues abroad. Their employment rate is growing four times faster 
than the national economy. 

If ever there was a prize that ought to be protected by the Con- 
gress of the United States and by this administration, it is this 
wonderful world of intellectual property in which we are superior 
and dominant throughout the world. 

So I say the Congress ought to equip us with the kind of intellec- 
tual property protection we need by extending this copyright term. 
Otherwise, competition in Europe particularly is going to get 
skewed against us. 

Which brings me now to the singular premise on which this, I 
hope, passionate plea is based and that is what we are asking you 



53 

to do is very much and confirmably so in the long-range economic 
interest of the United States. 

And now, since Congressman Conyers has arrived, may I do this 
all over again, please? 

[The prepared statement of Mr. Valenti follows:] 

Prepared Statement of Jack Valenti, President and CEO, Motion Picture 
Association of America 

Copyright term extension has a simple but compelling 
enticem.ent: it is very much in America's economic interests. 

At a time when our marketplace is besieged by cin 
avalanche of imports, at a hme when the phrase 'surplus balance 
of trade' is seldom heard in the corridors of Congress, at a time 
when our ability to compete in international markets is under 
assault, whatever can be done ought to be done to amplify 
America's export dexterity in tlie global arena . 

Europe is girding its economic loins. One small piece of 
that call to arms is that the European Union has lengthened 
copyright term to 70 years plus life of the author. Europe's 
planners understand all too clearly how the market works. In 
that kind of audiovisual locale, the U.S. has to match Europe. It 
can do so by extending U.S. copyright term to put our term, span 
at the same level as Europe's - 70 years PLUS life of the author or 
95 years for works made for hire. 

There are Four major reasons which command our 
attention and certify tlie need for copyright term extension: 

First, while the Berne Convention hcis a minimum term 
(life of the author plus fifty) any nation can provide longer terms. 
But, and this is pivotal, a nation does not have to prptect other 
countries' works beyond what those countries provide for their 
works. To put it plainly, Europe would not guard American 
works beyond the American term limit, whereas Eiuropean works 
would have longer security cmd energy in the marketplace. 

Second, this mecins that American works would go into 
public domain in Europe, thereby cutting off revenues for 
American copyright owners, and transferring those revenues into 
European hands, and elsewhere. 



54 

2 of 3 



Third, American creative works are the most globally 
popular, the most patronized, and the most sought after by 
exhibitors in theaters, television and home video all over the 
world. Which is why U.S. movies /TV programs and home video 
are America's most wanted exports, delivering back to our 
country more them $4 Billion in SURPLUS balance of trade. 
Intellectual property, consisting of the core copyright industries, 
movies, TV programs, home video, books, musical recordings and 
computer software comprise almost 4% of the nation's Gross 
Domestic Product, gather in some $45 Billion in revenues abroad, 
and has grown its employment at a rate four times faster than the 
annual rate of growth of the overall U.S. economy. Whatever 
shrinks that massive asset is NOT in America's best interests. 

The case for copyright term extension is tliat simple. 

What are the contrary views? 

Some academics plead that the consumer would be 
benefited because more public domain works would find wider 
circulation at cheaper prices. What academics do not observe or 
do not know is that while an American public domain work may 
be SOLD cheaper to exhibitors in many international markets, 
consumers <ire NOT grcmted cheaper prices. Npt at all. The 
theater ticket remains the same price. TV station, home video 
stores give no discounts to the public. Advertising rates do not 
come down. 

Academics also assert that when copyrighted works lose 
their protection, they become more widely available to the public. 
Again what academics do not observe or do not know is a simple 
marketplace truth: Whatever work is not protected is a work that 



55 

3 of 3 



no one preserves. The quality of the print is soon degraded. 
There is no one who will invest the funds for enhancement 
because there is no longer an incentive to rehabilitate and 
preserve. A public domain work is an orphan. No one is 
responsible for its life. But everyone exploits its use, until that 
time certain when it becomes soiled and haggard, barren of its 
previous virtues. Who, tlien, will invest the funds to renovate 
and nourish its future life when no one owns it? How does the 
consumer benefit from that scenario? The answer is, there is no 
benefit. What academics offer in numbing detail are the arcane 
drudgeries of graphs, charts, and aritlimetical lines drawn across 
a page, all of which dwell in isolation, separated from the 
realisms of the marketplace. 

And that brings us to the Fourth reason why it is 
necessary to extend copyright term limits. 

The Congress can, without reaching into the pockets of 
the average consumer, magnify the revenue reach of copyright 
owners, and thereby help, perhaps modestly, but help 
nonetheless, in the reduction of our trade deficit, as well as 
encouraging the preservation and nourishment of this nation's 
great, unmatchable trade prize, the American movie. In the 
global intellectual property world of tomorrow, competition will 
reach a ferocity unimagined today. The Congress must equip 
American owners of intellectual property with a full measure of 
protection, else competition, in Europe peirticularly, becomes 
skewed and U.S. copyright owners are reduced in their 
effectiveness. 

Which returns us to the singular premise on which this 
plea is based: ft is in the economic best interests of this country to 
extend copyright term limits. Now. 



56 

Mr. CONYERS. I may have heard it before. 

Mr. MOORHEAD. He wants you as a cosponsor on the bill. 

Mr. Valenti. I said, Mr. Chairman, if I may, Mr. Chairman, 1 
more minute. I said that I wanted you here, Congressman Conyers, 
because you are one of the three or four members of this sub- 
committee who hasn't cosponsored this copyright term extension 
and I felt like you would be susceptible to some of my passionate 
pleas. 

Mr. Conyers. I always have been. 

Mr. Valenti. Anyway, thank you, Mr. Chairman. I am grateful 
for the time. 

Mr. MooRHEAD. Thank you. 

Our next witness is Marilyn Bergman and many of you have 
heard, "The Way We Were," and many of the other wonderful, won- 
derful songs that she has written. We are very fortunate to have 
you here today. 

STATEMENT OF MARILYN BERGMAN, SONGWRITER, PRESI- 
DENT AND CHAIRMAN OF THE BOARD, AMERICAN SOCIETY 
OF COMPOSERS, AUTHORS AND PUBLISHERS 

Ms. Bergman. Thank you. Grood morning, again, Mr. Chairman. 
And thank you for holding these hearings about 12 miles from my 
home. You beat me by 8 miles. 

Mr. Becerra. Close enough. 

Ms. Bergman. Good morning, Mr. Chairman, and members of 
the subcommittee, my name is Marilyn Bergman. I am a song writ- 
er. I am also president and chairman of the board of ASCAP. I very 
much appreciate the opportunity to express our strong support for 
H.R. 989, the Copyright Term Extension Act of 1995. 

At the risk of repeating some of the eloquent words of our chair- 
man, and certainly the passionate words of Mr. Valenti, for the 
record I have to make my statement. 

I wish to start, Mr. Chairman, by applauding your recognition of 
the importance of extending our copyright term. You have been a 
leader on this important question, as on so many others vital to 
American creators and owners of cop)n-ight. We wish to express our 
deepest thanks for your support and for that of the many cospon- 
sors of this legislation from the subcommittee. Representatives 
Becerra, Berman, Bono, Coble, Gallegly, Gekas, Goodlatte, Nadler, 
and Schroeder. 

As you know, ASCAP exists to license the nondramatic public 
performances of copyrighted music written and owned by our more 
than 65,000 composer, lyricist, and music publisher members. We 
license music users and monitor, collect, and distribute royalties to 
our members. These royalties are the largest single source of in- 
come to song writers and that is what enables us to work in our 
chosen field and create the music that enriches the culture and the 
economy of our country. 

ASCAP, together with our sister societies BMI and SESAC, are 
among the many interested parties which have joined together to 
form the coalition of creators and copyright owners to support your 
bill. The coalition will submit a written statement. 



57 

My testimony today will focus on why this legislation is vital for 
America's music, and I will do so from my personal perspective as 
both ASCAP's chairman and as a working lyricist. 

H.R. 989 proposes to extend the terms of all copyrights in the 
United States by 20 years. There are two overriding reasons why 
that is an important idea. The first is economic. Term extension is 
necessary as a matter of international trade. It is necessary if our 
intellectual property, which does so much for the American econ- 
omy, is to be protected internationally. 

The second is that it is the right thing to do. The United States 
should do all it can to encourage creativity and to protect intellec- 
tual property. Extension of copyright term will serve to encourage 
the tens of thousands of music creators who struggle to earn a liv- 
ing in this highly competitive business, and for whom the prospect 
of leaving an asset of their own making to their children and 
grandchildren is a powerful incentive. 

Copyright of all forms of property transcends both national and 
international boundaries. In recent years, we have seen a true 
internationalization of the demand for and use of copyrighted 
works. Music, among a wealth of other copyrighted works, flows 
freely among and between nations. 

The technological developments which have resulted in the infor- 
mation superhighway, the national and global information infra- 
structures, will result in even greater ease of access to and com- 
merce in copyrights and copyrighted music on a worldwide basis. 

The creativity the world wants, as Mr. Valenti so passionately 
put it, is overwhelmingly the creativity of our country. America's 
music is what the world wants to hear and our music is far more 
popular overseas than foreign music is here. That means that we 
have a very positive balance of trade in music, as in all other copy- 
righted works. 

Last year, ASCAP sent $27 million overseas for performance of 
foreign music here, but we received $103 million for the perform- 
ance of our music abroad. If we were to count the amounts received 
by foreign subsidiaries of American music publishers for foreign 
performances the amount would be much greater. 

As you know, the European Union has adopted a directive to go 
into effect 1 month from today, which will make the copyright term 
throughout the E.U. 20 years longer than it is in the United States. 
But because of the rule of the shorter term, those European coun- 
tries will not protect American works for additional 20 years unless 
our copjTight term is also lengthened by 20 years. 

I and my American colleagues will have less protection than our 
European counterparts. And what is worse, we will lose, our coun- 
try will lose, the 20 years of royalties which we would otherwise 
earn if our country's copyright term was equal to that of the E.U.'s. 

ASCAP has calculated that the loss of ASCAP performing rights 
revenues earned in Europe alone by American writers and music 
publishers for the oldest 20 years of copyrighted music would 
amount to about $14 million annually. 

When we consider that performing rights are half the total in- 
come writers and publishers receive, we could estimate that in 
music alone term extension would mean a trade surplus of about 



58 

$25 million annually; money which would go directly to American 
creators, businesses, and the American economy's benefit. 

The loss of these revenues would not be fair to those of us who 
work so hard to create America's music, to those who invest consid- 
erable sums to bring that music to the public, and to our fellow citi- 
zens who rely on a strong U.S. economy. 

Mr. Chairman, if nothing else, it comes down to this: We can ob- 
tain 20 years of continued trade surplus for American creativity in 
the European market at no cost to ourselves simply by enacting 
your legislation. If we do not do so and do not do so now, over the 
next 2 years, the following great American songs and many others 
will fall into the public domain. The revenues they and other copy- 
righted works would generate in Europe for another 20 years, 
which would serve the economic good of our country, will simply 
vanish. Let me mention a few. 

Appropriately, "California, Here I Come," "Toot Toot Tootsie 
Good-Bye," "Rhapsody in Blue," "Tea for Two," "It Had To Be You," 
"The Man I Love," "I Will See You in My Dreams," "Lady be Good," 
"Ain't We Got Fun," "All By Myself," "April Showers," "Avalon," 
"I'll Be With You in Apple Blossom Time," "I'm Just Wild About 
Harry," "Look For The Silver Lining," "Make Believe," "Say It With 
Music," and "Secondhand Rose," only to mention a few. 

Logic and our country's economic self-interest dictate that we ex- 
tend our copyright term to take advantage of this opportunity for 
extended protection in the European market. We can do so by en- 
acting H.R. 989. Mr. Chairman, thank you for introducing this vital 
legislation and for this opportunity to voice our strong support for 
it. 

[The prepared statement of Ms. Bergman follows:] 



59 

Prepared Statement of Marilyn Bergman, Songwriter, President and 
Chairman of the Board, American Society of Composers, Authors and 
Publishers 

Good morning, Chairman Moorhead and members of the 
Subcommittee. My name is Marilyn Bergman. I am a songwriter. I 
am also President and Chairman of the Board of ASCAP. I very 
much appreciate the opportunity to express our strong support for 
H.R. 989, the Copyright Term Extension Act of 1995. 

I wish to start, Mr. Chairman, by applauding your 
recognition of the importance of extending our copyright term. 
You have been a leader on this important question, as on so many 
others vital to American creators and owners of copyright. We 
wish to express our deepest thanks for your support, and for that 
of the many co-sponsors of this legislation from the 
Subcommittee, Representatives Becerra, Berman, Bono, Coble, 
Gallegly, Gekas, Goodlatte, Nadler, and Schroeder. 

As you know, ASCAP exists to license the nondramatic 
public performances of copyrighted music written and owned by our 
more than 65,000 composer, lyricist and music publisher members. 
We license music users, and monitor, collect and distribute 
royalties to our members. These royalties are the largest single 
source of income to songwriters, and that is what enables us to 
work in our chosen field and create the music that so enriches 
the culture, and the economy, of our country. 

ASCAP, together with our sister societies BMI and 



60 



SESAC, are among the many interested parties which have joined 
together to form the Coalition of Creators and Copyright Owners, 
to support your bill. The Coalition has submitted a written 
statement. My testimony today will focus on why this legislation 
is vital for America's music, and I will do from my personal 
perspective as both ASCAP's head and as a working lyricist. 

H.R. 989 proposes to extend the terms of all copyrights 
in the United States by 20 years. There are two overriding 
reasons why that is a good idea. The first is economic -- term 
extension is necessary as a matter of international trade. It is 
necessary if our intellectual property, which does so much for 
the American economy, is to be protected internationally. The 
second is that it is the right thing to do, for the United States 
should do all it can to encourage creativity. Extension of 
copyright term will serve to encourage the tens of thousands of 
music creators who struggle to earn a living in this highly 
competitive business, and for whom the prospect of leaving an 
asset of their own making to their children and grandchildren is 
a powerful incentive. 

Copyright, of all forms of property, transcends both 
national and international boundaries. In recent years, we have 
seen a true internationalization of the demand for and use of 
copyrighted works. Music, among a wealth of other copyrighted 
works, flows freely among and between nations. The technological 
developments which have resulted in the information superhighway 
— the National and Global Information Infrastructures -- will 



61 



result in even greater ease of access to, and commerce in, 
copyrights, and copyrighted music, on a world-wide basis. 

And the creativity the world wants is overwhelmingly 
the creativity of our country. United States culture sets the 
standard for the world. America's music is what the world wants 
to hear, and our music is far more popular overseas than foreign 
music is here. That means that we have a very positive balance 
of trade in music, as in all copyrighted works. Last year, ASCAP 
alone sent $27 million overseas for performance of foreign music 
here, but we received $103 million for the performance of our 
music abroad . If we were to count the amounts received by 
foreign subpublishers -- foreign subsidiaries of American music 
publishers — for foreign performances, the amount would be much 
greater. That is money that went straight into the pockets of 
American writers and publishers, supporting American workers and 
American businesses. 

As you know, the European Union has adopted a 
Directive, to go into effect one month from today, which will 
make the copyright term throughout the EU 20 years longer than it 
is in the United States. But because of the "rule of the shorter 
term," those European countries will not protect American works 
for those additional 20 years unless our copyright term is also 
lengthened by 20 years. I and my American colleagues will have 
less protection than our European counterparts. What's worse, we 
will lose — our country will lose — the 20 years of royalties 
which we would otherwise earn if our country's copyright term was 



9:i.0R7 QR _ !i 



62 



equal to that of the EU's. ASCAP has calculated that the loss of 
ASCAP performing rights revenues earned in Europe alone by 
American writers and music publishers for the oldest 20 years of 
copyrighted music — the revenues that would be lost to our 
country — would amount to about $14 million annually. 

The loss of these foreign revenues would not be fair to 
these of us who work so hard to create America's music, to those 
who invest considerable sums to bring that music to the public, 
or to our fellow citizens who rely on a strong United States 
economy. Our country needs every penny of trade surplus we can 
get, and enactment of H.R. 989 will ensure that we do not lose a 
significant portion of the trade surplus in copyrights which we 
receive from Europe. 

Mr. Chairman, if nothing else, it comes down to this: 

we can obtain 20 years of continued trade surplus for American 

creativity in the European market at no cost to ourselves , simply 

by enacting your legislation. If we do not do so, and do not do 

so now, over the next two years the following great American 

songs, and many others, will fall into the public domain; the 

revenues they and other copyrighted works would generate in 

Europe for another 2 years, which would serve the economic good 

of our country, will simply vanish: 

AIN'T WE GOT FUN 

ALL BY MYSELF 

APRIL SHOWERS 

AVALON 

I'LL BE WITH YOU IN APPLE BLOSSOM TIME 

I'M JUST WILD ABOUT HARRY 

LOOK FOR THE SILVER LINING 

MAKE BELIEVE 

- 4 - 



63 



SAY IT WITH MUSIC 
SECOND HAND ROSE 

Logic, and our country's economic self-interest, dictate that we 

extend our copyright term to take advantage of this opportunity 

for extended protection in the European market. Let's do so by 

enacting H.R. 989. 

Mr. Chairman, thank you for introducing this vital 

legislation, and for this opportunity to voice our strong support 

for H.R. 989. 



64 

Mr. MOORHEAD. Thank you. The next witness is Mr. Richmond. 

STATEMENT OF EDWARD RICHMOND, PRESffiENT, 
ASSOCIATION OF MOVING IMAGE ARCHIVISTS 

Mr. Richmond. Thank you, Chairman Moorhead and members of 
the subcommittee. I am going to change the pace and talk about 
H.R. 1734, the National Film Preservation Act of 1995. And I want 
to thank you for giving me this opportunity to speak in support of 
it. 

I am here today representing the Association of Moving Image 
Archivists. AMIA is a professional association established in 1991 
to provide a means for cooperation among individuals concerned 
with preservation and use of moving image materials. It currently 
represents nearly 250 professional archivists working at more than 
100 institutions in both the public and private sectors. 

In commenting today, I will confine my remarks to title II of the 
proposed legislation, which seeks to establish a federally chartered 
foundation dedicated to the preservation of America's film heritage. 

I would like to say, however, that I also fully support title I, 
which seeks to reauthorize the National Film Preservation Board. 
The Film Board is an indispensable element in ensuring that the 
progress made to date in dealing with the real crisis in film preser- 
vation can be continued and expanded. 

In 1992 Congress asked the Film Board to prepare a comprehen- 
sive report on the nationwide efforts to preserve American motion 
pictures. The Board, with the invaluable assistance of the Library 
of Congress, accomplished this task in two stages. 

First, it undertook an extensive 1-year study to determine the 
current state of film preservation throughout the United States. 
This study entitled, "Film Preservation 1993," persuasively dem- 
onstrated that America's film heritage is at serious risk. 

And Chairman Moorhead has already mentioned some of the 
findings of this study. Fewer than 20 percent of feature films from 
the 1920's survive in complete form. Of the films made from 1895 
to 1950, less than half survive. Films made after 1950 continued 
to be endangered by many threats including color fading, the so- 
called vinegar syndrome, and sound track deterioration. And per- 
haps most alarmingly, funding for film preservation, which has 
never been adequate, has fallen to less than half its 1980 level 
when adjusted for inflation. 

As a second stage the Board oversaw the creation of a national 
plan to address these issues. The process of arriving at this plan 
was unprecedented. For the first time archivists, educators, 
filmmakers, technical specialists, entertainment industry execu- 
tives and others came together to find solutions to film preserva- 
tion problems. 

The resulting plan entitled, "Redefining Film Preservation," rep- 
resents the consensus, which emerged from this process. And, 
Chairman Moorhead, I would like to ask if a copy of the plan could 
be included as part of my written statement. 

Mr. Moorhead. So ordered. 

[See appendix, p. 423.] 

Mr. Richmond. The centerpiece of this plan is the creation of a 
federally chartered foundation. Working with the film preservation 



65 

community, the foundation will seek to raise private gifts and will 
be eligible to match those gifts with a limited amount of Federal 
funds. The foundation in turn will establish grant programs to 
make its assets available to nonprofit film-preserving institutions 
throughout the country. 

The foundation's primary role will be to help preserve and make 
accessible those films which are held in the public trust by non- 
profit institutions and which simply will not survive without public 
intervention. These films, sometimes referred to as orphan films, 
constitute a very large and indispensable portion of our film herit- 
age. 

They include newsreels, documentaries and actuality footage, 
independent and avant-garde films, socially significant amateur 
footage, regional materials of historical interest, films that have 
fallen into the public domain, and other films of cultural and edu- 
cational value whose cop3n'ight owners are unable or unwilling to 
provide long-term preservation. 

Important collections of such films exist in each of the 50 States. 
They can be found in local archives, museums, historical societies, 
libraries, and universities. 

And in most cases, the institutions holding these collections can- 
not afford on their own adequately to preserve, store, or make them 
accessible to the public. 

In addition to my work with AMIA, I am also the curator of the 
UCLA Film and Television Archives. Turning to my own institution 
as an example, UCLA holds many collections of films which are 
unique or represent the best remaining copies. Our largest collec- 
tion consists of more than 5,000 hours of newsreel footage from the 
19 10 through the early 1970's, much of which has never been seen 
by the public. 

This collection contains footage from all over the country and all 
over the world, but since these hearings are being held in Pasa- 
dena, I checked to see what footage existed on this area. We have 
coverage of the Tournament of Roses parade and Rose Bowl games 
dating back to the 1930's. We have films of many events which oc- 
curred over the years at the California Institute of Technology and 
the Jet Propulsion Laboratory. 

We have stories documenting an automobile race through the 
streets of Pasadena in 1936, new techniques being used by the 
Pasadena police to combat crime in 1938, and a rally by the Wom- 
en's Christian Temperance Union in Pasadena in 1947 and dozens 
more. 

The archive at UCLA is probably in a better position than many. 
We are partially funded by the University of California. And we 
have a good record of attracting outside support. Despite this suc- 
cess, however, we need help. Without it, we cannot properly store 
all of our materials. We cannot provide students and the public 
with as much access to our collections as we should and we cannot 
preserve all or even most of our films, including the Pasadena foot- 
age I just mentioned. 

And we are not alone. Other major archives such as the Library 
of Congress, the Museum of Modern Art, George Eastman House 
as well as hundreds of important regional local and specialized ar- 
chives are all facing similar problems. Each year the Nation's film 



66 

archives are losing unique footage, historically and culturally valu- 
able footage which deteriorates beyond saving and is gone forever. 

What we believe is needed urgently is the new approach rep- 
resented by the proposed National Film Preservation Foundation. 
Unlike the isolated efforts of individual archives, the foundation 
will have the national base to maximize private sector fundraising, 
foster public-private partnerships around preservation initiatives, 
assure the most efficient use of every preservation dollar and help 
address problems that are beyond the scope of any one institution. 

For these reasons, I believe passage of H.R. 1734, including title 
II, is vital to ensuring preservation of and access to America's film 
heritage and I urge you to give it your support. Thank you. 

[The prepared statement of Mr. Richmond follows:] 



67 

Prepared Statement of Edward Richmond, President, Association of Moving 

Image Archivists 



On behalf of the Association of Moving Image Archivists (AMIA), I am writing in 
support of H.R. 1734, the National Film Preservation Act of 1995 (Title I) and the 
National Film Preservation Foundation Act (Title II). AMIA is a professional 
association established to provide a means for cooperation among individuals concerned 
with the preservation and use of moving image materials. AMIA currently represents 
nearly 250 professional archivists working at more than 100 institutions in both the public 
and private sectors. Its members constitute most of the working professionals in the film 
archive field. 

I believe strongly that passage of H.R. 1734 is vital to insuring preservation of and 
access to America's film heritage. For the purpose of this statement. 1 will confine my 
remarks to Title II, which establishes a federally chartered foundation dedicated to the 
preservation of American mouon pictures. I would like to say, however, that I also 
strongly support Title I, which reauthonzes the National Film Preservation Board. If 
Congress had not established the Film Board, the nation's film preservation crisis may 



Association of Vlovinu iniu)!t; ArchivisLs>./o Naiional Center for Film and Video Preservation. The American Film Institute 
IM) Box27Wy • :;'21 North Western Avenue • Los Angeles. California 90027 



68 



Page two 

never have been addressed in a cooperative and comprehensive manner, and the Board's 
reauthorization is an indispensable element in assuring that the progress made to date 
can be continued and expanded. 

I. The National Film Preservation Report . 

I would like to begin by providing a very brief overview of the process which has 
resulted in the proposal to create a national film preservation foundation. 

Congress originally established the National Film Preservation Board in 1988. 
When the Board was reauthorized in 1992. Congress added to its duties the task of 
preparing a comprehensive report on the nationwide efforts to preserve .American 
motion pictures. The Board accomplished its assignment in two stages: 

STAGE ONE: the National Study . The Board undertook an extensive one year 
study to determine the current state of film preservation throughout the United States. 
This study, which was published in June of 1993 under the title FILM PRESERVATION 
1993, persuasively demonstrated that Amenca's film heritage is at senous risk. Among 
its alarming findings were the following: 

* Fewer than 20% of feature films from the 1920s survive in complete form; for 
features from the 1910s, the survival rate falls to 10%. Of films made from 1895- 
1950, less than half survive. 

* Films made after 1950 face several serious threats to their survival, including 
"color fading," the so-called "vinegar syndrome," and soundtrack deterioration. 

* Many American films can be found only in foreign archives. 

* Funding for film preservation, which has never been adequate, has fallen to 
considerably less than half its 1980 level, when adjusted for inflation. 



69 



Page three 

STAGE TWO : the National Plan . The Board next oversaw the creation of a 
national plan to address the problems identified in FILM PRESERVATION 1993. The 
process of arriving at this plan was unprecedented and historic in nature. For the first 
time, archivists, educators, filmmakers, technical specialists, and entertainment industry 
executives all came together to discuss, negotiate, occasionally to argue, but ultimately to 
find solutions to film preservation problems. More than thirty people directly 
participated as members of five task forces and committees, which met in person or by 
conference call more than twenty times over a period of six months. Through the task 
force and committee members, the discussions reached out to hundreds of others 
working in all the professions and disciplines mentioned above. 

The resulting plan, which was published in August of 1994 under the title 
REDEFINING FILM PRESERVATION, represents the consensus which emerged from 
this process. 1 think I am safe in saying that it is widely supported by all elements of the 
film community involved with preservation. 

The hallmark of the plan is the recognition that the preservation of America's 
film heritage requires a comprehensive, meaningful and ongoing partnership among 
public and non-profit archives, the film industry, the creative community, the educational 
community, other segments of the private sector, and the government. 

II. The National Film Preservation Foundation . 

In all, the national plan outlines thirty-one specific recommendations; among 

these are proposals for: 

* Redesigning preservation policies to underscore the importance of low- 
temperature, low-humidity storage in retarding film deterioration. 



70 



Page four 

• Increasing the availability of films for education, research and public exhibition. 

• Developing public-private partnerships to restore selected films, share 
preservation information, and repatriate "lost" American films from foreign 
archives. 

However, the key proposal which serves as the necessary centerpiece for the 
entire plan is to create a new federally-chartered foundation which would raise funds for 
two related purposes: (1) to promote the preservation of and public access to America's 
film heritage, concentrating on those films not preserved by commercial interests, and (2) 
to further the implementation of other components of the national plan and related 
activities. 

The basic concept of the foundation is simple. It is envisioned as a 501(c)(3) 
nonprofit organization in the District of Columbia. Working in close coordination with 
the film preservation community, it will seek to raise private gifts (both cash donations 
and in-kind contributions) and will be eligible to match those gifts with a limited amount 
of federal funds. 

The foundation in turn will establish grant programs to make its assets available 
to non-profit film preserving institutions throughout the country. Grants will be awarded 
only for specific projects, and no foundation funds will be used to cover administrative 
overhead on any project. The types of projects eligible for funding might include: grants 
to fund the archival preservation and restoration of film collections; grants to help 
establish regional climate controlled storage facilities to house endangered collections 
from many institutions; grants to make collections available to the public through 
cataloging, the striking of access and exhibition copies, and even the digitizing of 
collections of special educational interest to facilitate their access over the Internet. 



71 



Page five 

III. The Role of the National Foundation . 

Let me be clear about one point. I do not think anyone expects or wants the 
foundation to fund the preservation of Hollywood studio films, or any films controlled by 
copyright owners who are capable and willing to preserve them. Such films should be 
and, in most cases, are being preserved by their owners, either through internal company 
preservation programs or through collaborative restoration programs established between 
for-profit companies and non-profit archives. 

Rather, the foundation's role will be to help preserve those films which are held 
in the public trust by non-profit institutions and which simply will not survive without 
public intervention. These films - sometimes referred to as "orphan" films - constitute a 
very large and indispensable portion of America's film heritage. They include newsreels, 
documentaries and actuality footage, independent and avant-garde films, socially 
significant amateur footage, regional materials of historical interest, films that have fallen 
into the public domain, and other films of cultural and educational value whose copyright 
owners are unable or unwilling to provide long-term preservation. 

Important collections of such films exist in each of the fifty states. They can be 
found in local archives, museums, historical societies, libraries, universities, and non- 
profit associations. And in most cases, the institutions holding these collections cannot 
afford on their own adequately to preserve them, store them, or make them accessible to 
the public. This is the reality which film preserving institutions confront on a daily basis. 

In addition to my work with AMI A, 1 am the Curator of the UCLA Film and 
Television Archive. Turning to my own institution only as an example, the Archive at 
UCLA holds many collections of films which are unique or which represent the best 



72 



Page six 

remaining copies. Our largest such collection consists of more than 5,000 hours of 
historical newsreel footage dating from the 1910s through the early 1970s, much of which 
has never before been seen publicly. It is a virtual treasure trove for the study of the 
twentieth century. The collection includes extensive footage on most major events in the 
areas of American government, international relations, social and cultural developments, 
as well as coverage of most major figures in the fields of politics, busmess, technology, 
entertainment, and sports. 

Since heanngs on H.R. 1734 are being held in Pasadena. I checked the newsreel 
collection for footage on this area. We have extensive coverage of the Tournament of 
Roses Parades and Rose Bowl Games daimg back at least to the early 1930s. We have 
films of many events which occurred over the years at the California Institute of 
Technology and the Jet Propulsion Laboratory. We also have stones documenting an 
antique automobile race through the streets of Pasadena in 1936, new techniques being 
used by the Pasadena police to combat cnme in 1938, a rally by the Women's Christian 
Temperance Union in Pasadena in 1947. and dozens more. 

Now, the Archive at UCLA is in a better position than many. We are partially 
funded by the University of California, and our track record in attracting outside support 
is probably above average. Despite this success, we cannot properly store all of our 
materials: we cannot provide students, educators and the public with as much access to 
our collections as we should; and we cannot hope to preserve all of our films, most of 
our films, or even a substantial portion of our films -- not without help. 

And UCLA is not alone. The same can be said, to greater or lesser degrees, of 
most other archives and film preserving institutions throughout the country. Other major 



73 

Page seven 

film archi\-es such as the Libran of Ccxigress. the Museum of Modem An. the 
Intematioaal Museum of Photography and Film, as well as hundreds of important 
regional. local and specialized archives are all dicing similar probiems. 

Each v'ear the nation's film archives lose unique footage - historically and 
culturally valuable fbocage \k-hich is then gone forever. .Mready in 1995. UCL.A has been 
forced to dispose of almost 30.000 feet of f'vn because it deteriorated, in some cases 
literally to dust, before «% could raise funds to preserve it .\nd the same situation, on 
larger and smaller scales, is being repeated all ov-er the country, all the time. 

X^Tiai is needed urgently is the ne* ap{Hoach represented by the proposed 
national film preservation foundation. Unlike the isolated efforts of individual archives, 
the foundation vnll have the necessary national base to: (a) maximize private sector 
fimdraising. (b) foster public-pnvate partnerships around preservation initiatives, (c) 
insure the most effective use of every preser%-aiion dollar, and (d) help address {nnblems 
beyond the scope of any one institution. 

For these reasons. I urge >ou to suppon H.R. 1734. itKluding Title n. Please give 
the nation's film archives the national foundation we need to save America's film 
heritage, for the benefit of the .American people. 



74 

Mr. MOORHEAD. Mr. Murphy. 

STATEMENT OF EDWARD P. MURPHY, PRESffiENT AND CEO, 
NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC. 

Mr. Murphy. Good morning, Mr. Chairman and members of the 
subcommittee. I am Edward P. Murphy, president and chief execu- 
tive officer of the National Music PubHshers' Association, Inc. 
[NMPA]. I am pleased to appear before you today to provide the 
American music publishing community's views on H.R. 989, the 
Cop3rright Term Extension Act of 1995. 

NMPA represents more than 600 music publishers and NMPA's 
subsidiary, the Harry Fox Agency, serves as a licensing agent for 
more than 14,000 music publishers located in California, Ten- 
nessee, New York, and throughout the United States. 

Music publishers generally speaking are holders of copyright in 
musical works. The publisher's role is to nurture the creativity of 
song writers and composers through artistic, professional and eco- 
nomic support. Following the creation of a musical work, the pub- 
lisher functions as a promoter seeking recordings, performances 
and other modes of distribution. 

The publisher is the business side a partnership with music cre- 
ators. He or she administers the copyright in the work and takes 
steps to protect it from unauthorized exploitation, including acting 
as an advocate, sometimes individually and sometimes through 
NMPA, for strong cop3n*ight protection and enforcement throughout 
the world. 

The music publisher also serves as a counselor in the overall de- 
velopment of the creator's career. For all of their contributions to 
the creative process, the music publishers enjoy a close partnership 
with their song writer and composer colleagues. 

In light of the special role that the music publishers play in the 
creative process, and because of the strong bonds between publish- 
ers and songwriters and composers, NMPA is especially pleased to 
voice its support for term extension. The trade arguments in sup- 
port of term extension are overwhelmingly persuasive. More and 
more the U.S. economy is supported by the production of intellec- 
tual property by American creators and its dissemination to an 
eager world market. 

According to the economic study released by the International In- 
tellectual Property Alliance in 1993, the American copyright indus- 
tries accounted for nearly 4 percent of the gross domestic product 
and produced nearly $46 billion in foreign sales. 

The benefits to the United States of maintaining a leadership po- 
sition in advancing strong international copyright norms are self- 
evident. In numerous bilateral negotiations, in the North American 
Free Trade Agreement and in the Uruguay Round Agreement and 
on the trade-related aspects of intellectual property rights, United 
States' persistence yielded improved levels of protection. 

As the world's leading provider of copyright content, the United 
States charted the way for recognition of exclusive rental rights in 
certain works, for copyright protection for software, and for an ade- 
quate term of protection for sound recordings in countries that do 
not protect those works under copyright. 



75 

On the issue of duration of protection for copyrighted works in 
general, however, the European Union is pointing the way, and 
NMPA fears that way will be a dark and hostile one for American 
creators and copyright owners. The E.U. directive invokes reciproc- 
ity through the Berne Convention rule of the shorter term. Works 
of U.S. origin will fall into the public domain in the countries of 
the European Union at the expiration of their life plus 50 term 
while those same countries will grant works of their own authors 
an additional 20 years of protection. 

The only way U.S. works can qualify for the extended term in 
Europe is for our law to grant an equal extension. In other words, 
for H.R. 989 to become law. 

As this subcommittee considers H.R. 989 and issue of term ex- 
tension from a domestic policy standpoint, however, NMPA urges 
you to consider addressing an additional point not now covered by 
the bill; the issue of duration of transfers of rights. 

U.S. copyright law, back to the very first copyright act passed in 
1790, has struck a balance between interests of individual authors 
who create works and the publishers who foster the goals of copy- 
right by promoting the wide dissemination of those works to the 
public. In various acts up to and including the 1909 Copyright Act, 
this was accomplished by a split-term of protection. 

The 1909 act, for example, divided 56 years of copyright protec- 
tion into two 28-year terms, often referred to as the original and 
renewal terms. The theory behind this approach in part was to give 
the author a second opportunity at the beginning of the second or 
renewal term, to renegotiate a transfer of rights that may have 
proven to be less than satisfactory. The author was given a "second 
bite at the apple" that could take into account the demonstrated 
value of the works in the marketplace. 

With the evenly divided bifurcated term, each time the duration 
of the copyright was extended to the benefit of authors, publishers 
who made the initial investment in bringing the work to the public 
received an extended opportunity to recover their investment 
through a longer original term of protection. 

Congress, with an eye toward the U.S. accession to the Berne 
Convention, determined in the 1976 Copyright Act to switch from 
a fixed 56-year term of protection to the Berne's minimum of life 
of the author plus 50 years. 

In the years of congressional review that preceded the major 
statutory rewrite, the question of how to maintain a balance be- 
tween creators' and publishers' interests achieved by the split copy- 
right term was thoroughly debated. 

The notion of incorporating a statutory cap on the duration of 
copyright transfers was eventually agreed upon as the appropriate 
approach. When it was suggested that the cap be set at 25 years, 
Julian Abeles, then head of the organization had later became 
NMPA, pointed out that a 25-year limitation would make publish- 
ers 3 years worse off than they had been under the 1909 act's 28- 
year original term. 

Before the panel of experts convened by the Copyright Office, Mr. 
Abeles said: 

Today there are so few songs of any one publisher that have the potential. The 
publisher has to employ all possible ways and means, including a substantial ex- 



76 

penditure, to promote them. The competition is drastic today, and few songs ever 
become popular standards. If you are going to terminate the rights after 25 years, 
you are going to put the legitimate publishers out of business, because they must 
live on those few popular standards. 

It is the income from those popular standards he receives that places him in a 
position where he can exploit the new compositions. Such a provision would mean 
the death knell of our industry. I ask, why this radical curtailment of existing 
rights, instead of participation in the extension of such rights? 

Today, I ask the same question. Why extend the duration of 
copyright protection without an equitable extension of the statutory 
Hmit on the duration of transfers? 

Following Mr. Abeles's appeal, the preliminary draft of the act 
was amended to provide for termination of transfers after 35 years, 
and, in fact, that is now codified in section 203. Congress recog- 
nized, then, that the extended term warranted an extended period 
in which publishers could recoup their investments from the cre- 
ative process and the promotion of the works. 

I would like to illustrate with a little chart to show under the 
1909 act what the relative duration of transfers was in terms of 
years under the bifurcated term and what it is under the 1976 act, 
and under the legislation being proposed here. The chart shows 
what would happen in terms of a balance between the publishers' 
rights if they were left unamended the way it is listed in the bill 
now. 

What we are trying to bring to your attention is that the publish- 
er's interest is what we are trying to get across here and if we don't 
do something to change what has been put forward here, there will 
be a significant imbalance of the rights that exit right now. 

What Mr. Abeles noted more than 30 years ago is no less true 
today. That many works and the investments in those works never 
show a profit. Given the rich variety of music available to the 
American public, few think about it, but for every song that be- 
comes a hit, hundreds, many more, go unnoticed. 

From a business standpoint, duration of the publisher's oppor- 
tunity to exploit a work and recover his or her initial investment 
is crucial. While this is true for all categories of music, it is particu- 
larly true for serious works — classical works and musical theater. 

According to the Music Publishers' Association, an organization 
whose constituency is primarily involved with the production of 
sheet music, and that endorses NMPA's points of view, the rising 
costs of production makes investment in serious copyrighted mate- 
rial a very speculative undertaking. 

MPA has stated that in the United States, printing costs alone 
for a symphonic work average $15,000. Printing costs for a full op- 
eratic work range from $100,000 to $150,000. The markets for re- 
covering such an investment are small and have been harmed 
greatly by increasingly sophisticated photocop3dng technology. 

The problems confronting publishers of such works is 
compounded because much serious music gains little public expo- 
sure or acceptance until many years after its creation. For example, 
the famous Barber composition, "Adagio for Strings," experienced 
only modest economic success following its debut in 1939. It be- 
came popular 25 years later, however, when the piece of music was 
used in connection with the funeral of President Kennedy. 



77 

Another Barber work, an opera, "Anthony and Cleopatra," 
premiered in 1966, but it was not performed or recorded again 
until 1991. This cycle of earnings which is typical of serious and 
classical works means that a composition, which may some day be 
recognized as an American classic may not return a profit to the 
creator's descendants or to the music publisher owner within the 
current term of copyright protection, let alone during the 35-year 
period set under section 203 for the duration of transfers. 

The term of protection granted the author and the heirs under 
the 1976 act was life plus 50. The term of works made for hire is 
generally 75 years. But publishers who take copyrights by transfer 
and who invest a range of resources in promoting the work and its 
success, have their rights terminated in 35 years. 

Like many other copyright-based businesses, the music publish- 
ing business is a global one. In assessing where to invest limited 
resources, publishers must look at, among other things, the state 
of national law as it affects their operations. Nations of the Euro- 
pean Union do not limit the duration of transfers by statute, as the 
United States does. Under the laws in these important markets 
publishers and writers are free to negotiate a transfer for the dura- 
tion of copyright, or any portion of the term. 

Without some adjustment of the Cop3n'ight Act's existing provi- 
sions on term of transfers, U.S. law may have the unintended effect 
of driving publisher investment overseas. 

We urge you to consider these points carefully as you proceed in 
your review of this important legislation and to act to maintain the 
balance between author and publisher interests that has been a 
feature of the U.S. copyright law virtually since its inception. 

We look forward to working with the subcommittee on this im- 
portant point and towards passage of H.R. 989. 

In closing, I would like to offer one final observation. In the pe- 
riod of consideration of the 1976 Act, Congress recognized that, 
with each day that passed, works were falling into the public do- 
main. Some heirs would lose copyright protection forever, in part 
owing to the press of other legislative priorities. 

Should consideration of this important legislation be delayed, I 
strongly urge this body to follow the precedent of earlier Con- 
gresses and pursue a resolution calling for a temporary moratorium 
on the expiration of copjn'ight. Such a step would be a demonstra- 
tion of the commitment to the preservation of the jewels in the 
crown of our Nation's cultural heritage and enduring respect for 
the American artists and creators. 

Again, our thanks to the chairman and so many members of the 
subcommittee for their sponsorship of this very important legisla- 
tion. Thank you. 

[The prepared statement of Mr. Murphy follows:] 



78 

Prepared Statement of Edward P. Murphy, President and CEO, National 
Music Publishers' Association, Inc. 

Good morning Mr. Chairman and members of the Subcommittee. I am 
Edward P. Murphy, president and chief executive officer of the National Music 
Publishers' Association, Inc. ("NMPA"). 

I am pleased to appear before you today to provide the American music 
publishing community's views on H.R. 989, the "Copyright Term Extension Act 
of 1995." NMPA represents more than 600 music publishers, and NMPA's 
subsidiary, The Harry Fox Agency, Inc., serves as licensing agent for more than 
13,000 music publishers, located in California, Tennessee, New York and 
throughout the United States. 

Music publishers, generally speaking, are holders of copyright in musical 
works. The publishers' role is to nurture the creativity of songwriters and 
composers through artistic, professional, and economic support. Following the 
creation of a musical work, the publisher functions as its promoter, seeking 
recordings, performances and other modes of distribution. 

The publisher is the business side of a partnership with the music creator. 
He or she administers the copyright in the work and takes steps to protect it 



79 



-2- 
from unauthorized exploitation, including acting as an advocate (sometimes 
individually and sometimes through NMPA) for strong copyright protection and 
enforcement throughout the world. 

The music publisher also serves as a counsellor in the overall development 
of the creator's career. For all of their contributions to the creative process, 
music publishers enjoy a close partnership with their songwriter and composer 
colleagues. 

In light of the special role that music publishers play in the creative 
process, and because of the strong bonds between publishers and songwriters and 
composers, NMPA is especially pleased to voice its support for term extension. 

The trade arguments in support of term extension are overwhelmingly 
persuasive. More and more, the U.S. economy is supported by the production 
of intellectual property by American creators and its dissemination to an eager 
world market. According to an economic study released by the International 
Intellectual Property Alliance, in 1993, the American copyright industries 
accounted for nearly four percent of the Gross Domestic Product and produced 
nearly $46 billion in foreign sales. 

The benefits to the United States of maintaining a leadership position in 
advancing strong international copyright norms are self evident. In numerous 
bilateral negotiations, in the North American Free Trade Agreement and in the 
Uruguay Round agreement on the Trade-Related Aspects on Intellectual 
Property Rights, the United States' persistence yielded improved levels of 



80 

-3- 
protection. As the world's leading provider of copyright "content," the U.S. 
charted the way for the recognition of exclusive rental rights in certain works, for 
copyright protection for software, and for an adequate term of protection for 
sound recordings in countries that do not protect those works under copyright. 

On the issue of duration of protection for copyrighted works in general, 
however, the European Union is pointing the way. And NMPA fears that way 
will be a dark and hostile one for American creators and rights owners. The 
E.U. directive invokes reciprocity through the Berne Convention's "rule of the 
shorter term." Works of U.S. origin will fall into the public domain in the 
countries of the European Union at the expiration of their life-plus-50 term, 
while those same countries will grant works of their own authors an additional 
20 years of protection. The only way U.S. works can qualify for the extended 
term is for our law to grant an equal extension -- in other words, for H.R. 989 
to become law. 

As this Committee considers H.R. 989 and the issue of term extension 
from a domestic policy standpoint, however, NMPA urges you to consider an 
addressing an additional point not now covered by the bill: the issue of the 
duration of transfers of rights. 

U.S. copyright law, back to the very first Copyright Act passed in 1790, 
has struck a balance between the interests of individual authors who create works 
and the publishers who foster the goals of copyright by promoting the wide 
dissemination of those works to the public. In various Acts, up to and including 



81 



-4- 
the 1909 Copyright Act, this was accomplished by a split-term of protection. The 
1909 Act, for example, divided 56 years of copyright protection into two 28-year 
terms, often referred to as the original and renewal terms. The theory behind 
this approach, in part, was to give the author a second opportunity, at the 
beginning of the second or renewal term, to renegotiate a transfer of rights that 
may have proven to be less than satisfactory. The author was given a "second 
bite at the apple" that could take into account the demonstrated value of the 
work in the marketplace. 

With the evenly divided, bifurcated term, each time the duration of 
copyright was extended to the benefit of authors, publishers who made the initial 
investment in bringing a work to the public received an extended opportunity to 
recover their investment through a longer original term of protection. 

Congress, with an eye toward U.S. accession to the Berne Convention, 
determined in the 1976 Copyright Act to switch from a fixed 56-year term of 
protection to Berne's minimum of the life of the author plus 50 years. In the 
years of congressional review that preceded that major statutory rewrite, the 
question of how to maintain the balance between creators' and publishers' 
interests achieved by the split copyright term was thoroughly debated. 

The notion of incorporating a statutory "cap" on the duration of copyright 
transfers was eventually agreed upon as the appropriate approach. When it was 
suggested that the cap be set at 25 years, Julian Abeles, then head of the 
organization that later became NMPA, pointed out that the 25-year limitation 



82 



-5- 

would make publishers three years worse off than they had been in under the 

1909 Act's 28-year original term. Before a panel of experts convened by the 

Copyright Office, Mr. Abeles said: 

[t]oday there are so few songs of any one publisher that have potential. 
The publisher has to employ all possible ways and means, including 
substantial expenditure, to promote them. The competition is drastic 
today, and few [songs] ever become popular standards. If you are going 
to terminate the rights after 25 years, you are going to put the legitimate 
publishers out of business, because they must live on those few popular 
standards. It is the income from those popular standards he receives that 
places him in a position where he can exploit new compositions. Such a 
provision would mean the death knell of the industry. I ask, why this 
radical curtailment of existing rights, instead of participation in the 
extension of such rights. [Emphasis added.] 

Today, I ask the same question. Why extend the duration of copyright 
protection without an equitable extension of the statutory limit on the duration 
of transfers? 

Following Mr. Abeles appeal, the preliminary draft of the Act was 
amended to provide for termination of transfers after 35 years, and, in fact, that 
is period now codified in section 203. Congress recognized then that extended 
term warranted an extended period in which publishers could recoup their 
investments in the creative process and in the promotion of works. 

What Mr. Abeles noted more than 30 years ago is no less true today: that 
many works -- and the investments in those works -- never show a profit. Given 
the rich variety of music available to the American public, few think about it, but 
for every song that becomes a hit, hundreds -- maybe more -- go unnoticed. 



83 



-6- 

From a business standpoint, duration of the publisher's opportunity to 
exploit a work and recover his or her initial investment is crucial. While this is 
true for all categories of music, it is particularly true for serious works, classical 
works and musical theater. According to the Music Publishers' Association, an 
organization whose constituency is primarily involved with the production of sheet 
music, the rising costs of production make investment in serious copyrighted 
material a very speculative undertaking. MPA has stated that, in the U.S., 
printing costs alone for a symphonic work average $15,000. Printing costs for a 
full operatic work range from $100,000 to $150,000. The markets for recovering 
such investments are small (and, have been harmed greatly by increasingly 
sophisticated photocopying technology). 

The problem confronting publishers of such works is compounded because 
much serious music gains little public exposure or acceptance until many years 
after its creation. For example, the famous Barber composition, "Adagio for 
Strings," experienced only modest economic success following its debut in 1939. 
It became popular 25-years later, however, when the piece was used in 
connection with the funeral of President Kennedy. Another Barber work, the 
opera "Anthony and Cleopatra," premiered in 1966, but was not performed or 
recorded again until 1991. TTiis cycle of earnings, which is typical of serious and 
classical works, means that a composition which may some day be recognized 
as an American classic may not return a profit to the creator's descendants or to 
the music publisher owner within the current term of copyright protection. 



84 



-7- 

The term of protection granted the author and heirs under the 1976 Act 
is life-plus-50 years. The term for works made for hire is generally 75 years. But 
publishers who take copyrights by transfer, and who invest a range of resources 
into promoting the work and its success, have their rights terminated at 35 years. 

Like many other copyright-based businesses, the music publishing business 
is a global one. In assessing where to invest limited resources, publishers must 
look at, among other things, the state of national law as it affects their 
operations. Nations of the European Union do not limit the duration of transfers 
by statute, as the U.S. does. Under the laws in these important markets, 
publishers and writers are free to negotiate a transfer for the duration of the 
copyright, ^r any portion of the term. Without some adjustment of the Act's 
existing provisions on termination of transfer, U.S. law may have the unintended 
effect of driving publisher investment overseas. 

We urge you to consider these points carefully as you proceed in your 
review of this important legislation, and to act to maintain the balance between 
author and publisher interests that has been a feature of U.S. copyright law, 
virtually since its inception. We look forward to working with the Subcommittee 
on this important point and toward passage of H.R. 989. 

In closing, I would like to offer one final observation. In the period of 
consideration of the 1976 Act, Congress recognized that, with each day that 
passed, works were falling into the public domain. Some heirs would loose 
copyright protection forever, in part owing to the press of other legislative 



85 



-8- 
priorities. Should consideration of this important legislation be delayed, I 
strongly urge this body to follow the precedent of earlier Congresses, and pursue 
a resolution calling for a temporary moratorium on the expiration of copyright. 
Such a step would be a demonstration of commitment to the preservation of the 
jewels in the crown of our nation's cultural heritage and of enduring respect for 
America's artists and creators. 

Again, our thanks to the Chairman and so many members of the 
Subcommittee for their sponsorship of this important legislation. 



86 

Mr. MOORHEAD. Thank you very much. The procedure we are 
going to follow now is that each one of the members will have 5 
minutes to ask questions. If it is necessary, we could have a second 
round. 

I am going to give both Mr. Conyers and Mr. Bono, who were late 
for no reason of their own fault whatsoever — they had a little prob- 
lem finding the building and the bus had left for John Conyers, so 
they will have time to make an opening statement if they desire 
to do so. I will take the first 5 minutes. 

Mr. Murphy, you have told us what is presently wrong with the 
law and that the bill that we have doesn't really correct the prob- 
lems that you want. 

I would appreciate it if you would give us specific recommenda- 
tions in writing at a later time as to how to correct the problem 
that you are concerned with. And anyone else that has — on the 
panel that has a concern about this issue, can also make comments 
and we will put it in our record. 

Opponents of copyright term extension point out that there are 
a number of benefits to the public domain that will be lost or post- 
poned as a result of this legislation. 

Ms. Bergman, how would you respond to that? 

Ms. Bergman. Well, I think the point was well alluded to by my 
colleague on my right, Mr. Valenti, when he spoke of the fact that 
the consumer really does not have any benefit when a work goes 
into public domain. The last time I looked, a recording of a Bee- 
thoven symphony, for example, cost no less to a consumer than a 
current pop album. 

I also think that it is a question of economics. It is a question 
of getting the works for free and they are not free to the consumer 
just because they are in the public domain. Rather, they became 
unavailable because there is no one to promote them or because 
they are not protected. They are not promoted or they degrade, in 
the case of film or they go out of print, in the case of books or re- 
cordings. I think the benefit to the public is not served by having 
works go into the public domain. 

Mr. MooRHEAD. Mr. Valenti, in Europe there is not an equiva- 
lent work-for-hire system for motion pictures. Wouldn't extending 
the copyright term in work-for-hire situations from 75 to 95 years 
give American companies more protection than their European 
counterparts? 

Mr. Valenti. What protection would they get, Mr. Chairman? 

Mr. MoORHEAD. Moving it from 75 to 95 for work-for-hire situa- 
tions. 

Mr. Valenti. Of course, we are talking about — one is the Euro- 
pean method or process of copyright is called droit morale, moral 
rights, in which those people, other than the producer or the dis- 
tributor of the film have the right to sometimes dictate the com- 
pass course of that work through the sequential marketplaces in 
which it goes. 

Our works for hire allows the producer to gather in his one hand 
all of the rights which allows them a disciplined and aggressive 
marketing campaign in all the sequential marketplaces. The fact is 
that the moral rights system that is now the nature of Europe 
hasn't been working too well if you judge by the success of the cin- 



87 

ema industries in Europe, which Europeans will tell you, somewhat 
unhappily, is in decline. 

I spent the last week meeting with European producers on how 
to revitalize the European cinema. Whereas the American system 
of works for hire is confirmably and singularly the most successful 
in all the world. Therefore, I don't think there is any rational per- 
son that would want to inflict a system on this country that doesn't 
seem to work an3rwhere else in the world. 

But under copyright, the Europeans are bound to protect us. We 
are a member of Berne. We joined in 1989. I wanted us to join a 
lot earlier. But we are a member of Berne and therefore we are ac- 
corded the protection of Berne. And if this copyright term extension 
is granted, as I pray it will by the Congress, then we will be on 
equal footing because as I said in my opening statement, the Euro- 
peans are bound only by Berne, which is life of the author plus 50 
years or 70 years, and they do not have any requirement to protect 
beyond that, though they do have the right to lift their own copy- 
right extension far beyond Berne as they have done. 

So all we are asking very simply, this thing shouldn't be too com- 
plicated. This is an economic issue, Mr. Chairman. It is a crucial 
and pivotal economic issue. And that is we must match the Euro- 
peans, else we are at a severe disadvantage. It is very simple. And 
I am not going to try to complicate it by giving you any arcane 
theories. - 

Mr. MOORHEAD. I have a question here for either Mr. Richmond 
or Mr. Murphy. Would you describe the types of film archives and 
film preservation activities which might be eligible for the founda- 
tion, how numerous are they and where are they located? 

Mr. Richmond. In terms of how numerous they are, there are ar- 
chives of all sizes and descriptions. One of the strengths of the 
American archival community is that we do not have one national 
archive. The national collection, so to speak, is held by literally 
hundreds of repositories throughout the country, which are geo- 
graphically dispersed and philosophically diverse. 

The types of activities that could be funded by the foundation, I 
can imagine, several. Certainly the funds to preserve and restore 
archival collections that are held in nonprofit institutions that have 
historical or cultural importance. Funds to catalog collections so 
that information about them can be made available to the public. 
Obviously, the public can't have effective access to this heritage of 
theirs if they do not know what is there. 

One of the major new shifts in film preservation community is 
the emphasis on storage. It is no longer simply a question of pre- 
serving a film by doing laboratory work. We recognize now the 
films have to be stored under very good temperature and humidity 
control in order to make sure that they can last as long as possible. 
So I could certainly see this foundation working cooperatively with 
others to help try to establish regional storage repositories where 
many archives from a region could place their collections under ar- 
chival conditions. 

I think one of the big areas would be trying to make the Amer- 
ican film heritage more accessible to people by cataloging is one 
way, and the striking of reference prints and access copies. And 
even for collections that are of special educational interest, the 



88 

digitizing of collections so they can be made available over the 
Internet. Those would be some of the possibilities. 

Mr. MOORHEAD. My time has expired. The ranking minority 
member of the full Judiciary Committee, John Conyers, is here 
today. He represents a district near Detroit and has been very ac- 
tive in these issues. John Conyers. 

Mr. Conyers. Thank you. And good morning, Mr. Chairman and 
members of the committee and my friends on the panel and the la- 
dies and gentlemen of interest who are here in this courthouse this 
morning. 

I am so pleased to be, by virtue of being the senior member of 
Judiciary, a member on all of the subcommittees. And this one is 
my favorite because it is the most farflung in terms of its oper- 
ation. 

In terms of shoring up intellectual property and looking at the 
international questions, we have gone from Beijing to Xian to 
Guangzhou to Seoul, but it took us coming to Pasadena to find out 
that there was a south Pasadena. And not only one Grand Street, 
but two, which made for an interesting diversion as we roamed the 
Nation and sometimes the world in terms of these very important 
intellectual questions. 

But I am here. And all is well, here. I think this is a tremendous 
subcommittee and a very important part of the Judiciary Commit- 
tee. The fact of the matter is that under the new leadership, fre- 
quently many of the issues that are subcommittee issues become 
full committee issues. And so as you look upon us as guardians of 
American intellectual property, don't forget that we also have to 
deal with questions of how many automatic weapons should be al- 
lowed in the United States of America; what should we do with flag 
burners, if there are any and if they are conducting their horrible 
activities; how much damages can be awarded under civil disputes; 
and then, of course, these great questions of culture that bring us 
to our subject matter today. Two measures that are actually rel- 
atively simple in terms of the issues that are confronting us. 

I see all of these things moving in the course of a great supporter 
of our culture and music, in particular, as one who came on the 
scene when the Vietnam issue was dividing the Nation, when the 
civil rights movement was nascent and began to build. And there 
was a young man with Lyndon Johnson named Valenti and a 
young man with Dr. King named Conyers. And we both wove a web 
of interrelationships that have spanned some 31 years, as I recall 
it. 

And it has been interesting because the basis of all our activity 
here in this committee is essentially based on a constitutional 
premise primarily embodied in the first amendment; this thing 
called freedom of expression, this thing called the right to dissent. 
And they have come together in a very curious way. 

And the more I examine the Constitution and the laws of this 
country, the more I realize that these laws don't just hang out 
there by themselves. That, in fact, the laws give the framework for 
people, government leaders, frequently fueled by public opinion, to 
do things and make decisions within a constitutional framework 
that have rather large ramifications. 



89 

And, so, we come here today to talk about the film industry and, 
you know, history is one of those things that can frequently be 
short-lived. The French made, to me, some of the most initial and 
profound developments in the history of cinematography. But there 
was something in the creative force in this country that I argue 
was embedded in the first amendment, that allowed a creativity 
that would not let culture become a department within a govern- 
ment. 

And that energy, that unlimitedness that is here in this country, 
quickly moved us ahead, not just in movies, but in all the arts, the 
literature, the languages. 

And so today, we are premier. But it was not just a given that 
it started off like that. To me, I think there is a constitutional 
nexus that this committee, of all committees in the Congress, is 
bound to observe and relate to every now and then. 

And so, I am happy to be here now because the questions are not 
as easy as they used to be in another generation, Mr. Valenti. We 
are now torn between the first amendment and some very, very 
delicate questions. How obscene is "Pulp Fiction," and as great an 
art, and what if anything can or should we do about it? And what 
about gangster rap? Want to play it for your 4-year-old son? 

And so we come here now caught up in new and more difficult 
constitutional questions at the very moment that we are moving 
now into a more technical, a more technological era than ever be- 
fore where all of our telecommunications, our digital, our TV, our 
telephones, begin now to interact in new and powerful ways that 
will require us to now go back and examine some of the very basic 
premises that we have nurtured for all these years. 

And so I close my comments observing that very much with us, 
today, Carlos, is the spirit, and the former leadership of Bob Kas- 
tenmeier, who for more than a decade led and inspired this com- 
mittee. 

As a matter of fact, he did such a good job, that if you weren't 
on the Intellectual Property Subcommittee you left it to Kasten- 
meier and Moorhead and later on Berman and let it go at that. The 
rest of the Judiciary Committee took a pass on these questions. 

But we can't do it anymore. And the reason we can't do it and 
because a lot of my wonderful new leaders in government are tell- 
ing us that venerable institutions no longer need to exist. I am told 
on one hand that we don't need to worry about antitrust activity 
in the department and then I am told on the other that the very 
agency they would cede it to, the FCC, doesn't need to exist. You 
only need an executive office there. Who needs Federal Commu- 
nications Commissions? 

Well, I think we need both. And I am not one of those — and 
maybe I am one of the old dinosaurs around the 104th, but I am 
not one of those that rush to this dismantling process with 
unconcealed glee. I think it ought to be a very careful, deliberate, 
well-thought-out approach. And now that we are out of that forced 
march called 100 days, we are now able to give some thought and 
dignity to the proceedings in the Congress. And this committee, 
under our chairman, I know is committed to that. 

As a matter of fact, some consider it a weakness; his fairness is 
too fair, I think it is a strength. And I think it keeps this commit- 



90 

tee in the nonpartisan and yet forward-thinking way that is de- 
manded of the times on the subject of intellectual property. 

When we got back from China, the first announcement that we 
received was that after long last, the movie industry would be able 
to open an office in Beijing. We think that we may have had some- 
thing to do with that. 

We were looking in Asia, another huge area of our concern, for 
the enforcement of the intellectual property agreements that they 
have signed. You know, signing them are great days and great 
sound bytes, but who is going to enforce intellectual property rights 
in a country that has never heard of the subject in their judicial 
system before? 

And, thankfully, we have a provision in which we will help train 
and that they are agreeable to that sort of thing. 

And so, this, as you can tell, is a committee of — ^that I approach 
with great enthusiasm. The concurrent resolution on jazz has al- 
ways been one of my great delights. The movie industry which — 
most Americans consider themselves to be movie authorities, not 
just movie buffs and I am no exception to that. And to tour lots 
and see African-Americans working on stages as construction 
hands — I remember when that used to be fought bitterly, year after 
year, how to get some black carpenters in the lots in Hollywood. 
And you can walk in anywhere now and look around and they 
weren't put there for me. It wasn't my benefit. I wasn't even sup- 
posed to have been on one lot that we walked into last night. 

To see African-American vice presidents of motion picture cor- 
porations is a brandnew development and it continues the thread 
that two guys brought, one with President Johnson and one with 
Martin Luther King, over 30 years ago. 

Thank you, Mr. Chairman for allowing me so much time. 

Mr. MOORHEAD. Thank you, John. 

One other member that has come in, he went to the wrong court- 
house, which is understandable because there are several here in 
Pasadena. But he is probably our most famous member, Sonny 
Bono from Palm Springs, CA, the freshman Member in Congress, 
someone who has had a fantastic career prior to coming here. 
Sonny. 

Mr. Bono. Thank you, Mr. Chairman. I will keep my opening 
statement brief. Being a songwriter and coming from that industry, 
there were always inequities that were hard for me to understand, 
first initially as a songwriter. 

I didn't know why the Government got involved in a song at all 
or in a movie at all. As far as I was concerned, I wrote the song, 
or somebody else did, and it was mine. But then I found out that 
I could only have it for 25 years, I think, or 26 years. This was in 
1952 when I started and wrote, "You Bug Me Baby." 

And if you missed that moment, the song went away, and it 
wasn't yours anymore and it became public domain. And it was so 
strange. It is a very interesting business because a lot of the cre- 
ators now are kids, and they grab a guitar and they write a song, 
and it is just a sound to them. It is theirs. And that song becomes 
a piece of art later on. And the creator never suspects sometimes 
that that will become a piece of art for the rest of life. And so to 



91 

him it is just a little song that he wrote for his girlfriend or what- 
ever. 

And so you have somebody who is really not as serious as other 
people who realize the commercial aspect of this. So you have got 
a songwriter, then you have got the publishers, as Mr. Murphy was 
talking about, who are aware of the commercial value of a song. So 
if they hear a song, they hear the value, the commercial value of 
a song. And their input is good. And they direct it in a proper way 
with more maturity. 

But it goes from a little song to a commercial venture and then 
to a piece of art. And during this travel, it becomes public domain 
or under a legislative body that can direct where it goes and how 
it goes and what rights you have after you have created it. 

So, I have a few questions that I want to ask. The public, and 
even this committee — and I certainly don't mean that arrogantly — 
sometimes, unless you are a performer and unless you are a writer, 
there are more details at that level than anyone else is able to un- 
derstand. 

And one of the issues I want to — ^Mr. Murphy gave a beautiful 
speech about publishers and I presume you represent publishers; 
is that correct? I guess my question to you would be what right 
does the songwriter have once he has designated it to a publisher 
as far as reproductions of his song? 

Say some group wants to do his song and he doesn't care for this 
group or he doesn't think that his piece of art is represented prop- 
erly, but the publisher sees the commercial side. What are the 
rights of the songwriter? 

Mr. Murphy. Mr. Bono, I think that a lot depends upon the con- 
tractual understanding the songwriter entered into with the par- 
ticular publisher. 

Mr. Bono. And let me just stop you there and let me bring out 
a point. And the point there that I want to go back to, the contrac- 
tual rights, you have creators now that are 18, 17, so they enter 
into a contract. And once they enter into that contract, they are 
stuck to that, you know. And that goes on for life. It is unchange- 
able. 

And I guess I want to raise the issue of equity between the song- 
writer and the publisher. And now we will go back to what does 
the songwriter have to say if somebody records his song and de- 
means his song or does his song in a demeaning fashion, what 
rights does the artist have? 

Mr. Murphy. In terms of the sale of recordings, as you know, Mr. 
Bono, there is a compulsory mechanical license in America. And as 
such, under the compulsory license, anyone, after the first use — ^you 
understand that under the licensing system that has been put to- 
gether by Congress, the first use has always been reserved to the 
songwriter and to the publisher — the songwriter can prevent any 
use, the first use. Once that has been done, performed and made 
available to the public, the second and subsequent use then fall 
under the compulsory mechanical license. And as such 

Mr. Bono. Is that the songwriter's control when he records it for 
the first time basically is what you are saying, correct? 

Mr. Murphy. That is correct. The second time, once it has been 
recorded and made available to the public, then other individuals 



92 

can come along and record your song. And, of course, under the 
compulsory license, the song shouldn't be changed in any demon- 
strable way. Because there are some changes that are made to the 
song, but it shouldn't be demonstrable. No one should change the 
lyrics or the original melody in any way. 

There are certain liberties that are taken in the arrangement of 
a song. It can be done electronically as opposed to an original piano 
version or instrumental version. Generally speaking, that is the 
right within the scope of the compulsory license. One cannot 
change the lyrics of your song. One cannot in any way change the 
song — ^the writer owns the song and they can't change it. If they 
do, there is recourse under the law and you can go before the 
courts and stop that. 

Mr. Bono. Right. But let's go back to that. You can have your 
song demeaned in other ways then just the lyrics altered. And that 
is in the hands of the publisher only; correct? 

Mr. Murphy. I am not sure I understand what you mean. 

Mr. Bono. I am saying if another artist takes the song and it dis- 
pleases the creator of that song and he would prefer not to have 
that money or the song recorded by that person if they don't record 
it in the fashion that it was written and the intention is somewhat 
demeaning, does he have any rights or is it to the discretion of the 
publisher only to say, yes, you can record that or, no, you can't 
record that? 

Mr. Murphy. Again, under the terms of the compulsory license, 
anyone can record a song. I can think of some times when I was 
a publisher that the original creators didn't particularly like a ver- 
sion that was published, but under the U.S. act and regulations, 
that version had to go out. I am talking about a recorded version. 
This is not a revision of lyrics or text. 

But the recording companies, as you know, do sign up an artist 
and do make the selection of that song. And of course, once they 
make that selection they have a right to put it out as long as it 
doesn't in any way change the original constitution of that song. 

Mr. Bono. Here is what I would like to suggest to you, because 
we are getting into rhetoric. After a song is turned over to the pub- 
lisher, he becomes more or less the owner of that song and really 
the fate of that song is up to the publisher. 

And when we talk about this legislation, since we are going to 
have legislation and I understand you may get involved in that leg- 
islation, one of the bones of contention that I have as a songwriter 
is that you have nothing to say about your song after you write it 
and after you turn it over to a publisher. So the publisher has all 
of the say-so from that point forward. 

So, if someone wants to take a song and mock you with that song 
and use it to debase you, I guess that is the word, they can. They 
have to be a little clever, but they can. But if it represents dollars 
to the publisher, the publisher might let it fly. 

Anyway, I think that one consideration we have to talk about, 
since legislation is involved here, is that the songwriter — the cre- 
ator should have as much rights as the publishers. And they don't 
at this point in time because hypothetically they signed a contract 
and it could have been when they were very, very green and didn't 
know a thing about the business. 



93 

And so I would urge you, because I will be active in that area, 
to let the songwriter have a say so. That has occurred with me sev- 
eral times and there was nothing I could do about it. On the 

Mr. Murphy. Mr. Bono, I would be happy to talk to you and give 
you or any songwriter any advice that I can. Our organization 
stands ready to help songwriters in this area and would be happy 
to do this, and we do. That is what our organization does. And we 
would be pleased to review that. 

Mr. Bono. I hope, again, if we are going to go with legislation, 
that we recognize the creator of the product. It is kind of like a 
painting belongs to the painter, but the song gets taken away from 
the writer. And I think it is inverted in some degree. So I think 
that equity should be worked out. 

As far as archives are concerned, wherever the Government con- 
tribution is, is that public domain or is that for personal use? I 
mean, does it belong to a movie company? Does it belong to a pri- 
vate company or is it all public domain? 

Mr. Richmond. I am not quite sure I understand the question. 
I think I do. The way that the House bill 1734, title II would set 
up the foundation, the foundation's primary role would be to work 
with the film community to raise private sector funding and the 
foundation would be eligible to match that funding with a limited 
amount of Federal funds and then those funds would be given out 
as grants to nonprofit institutions throughout the country for spe- 
cific projects. 

Mr. Bono. Are any of those preservations for private companies? 

Mr. Richmond. No, the grants would be given to nonprofit insti- 
tutions for specific projects. None of the funding would go to pay 
for any overhead on a project. And the foundation would focus on 
what has been described as orphan films, films that are held in the 
public trust by public institutions. 

The Hollywood studio films, I think we all agree, and the Holly- 
wood community certainly has agreed, are the responsibility of the 
studios to preserve. 

Mr. Bono. I just think if they are privately held, then that 
should be up to that private person. My time is up. Thank you. 

Mr. MOORHEAD. Mr. Howard Berman. 

Mr. Berman. Thank you very much, Mr. Chairman. How did the 
ninth circuit ever get to Pasadena? 

Mr. Conyers. Political power. 

Mr. Berman. It is interesting hearing Mr. Bono's questions, or 
reaction, the different ways we look at government. He sees it, 
after I wrote my first song, how come the Government is only let- 
ting me keep that song for 22 or 25 years. And I am thinking, the 
Government is protecting me from all the thieves who want to steal 
that song for 25 years. And here is a useful role for the Govern- 
ment, trying to protect the creative rights of Sonny Bono and oth- 
ers. And, in fact, on several occasions have extended that period of 
time and now we are proposing to extend it further. 

The Government is pla3dng the role of protecting the rights of the 
individual creator against the people who would want to steal his 
or her property. And so I guess it is all how you look at it. 

Mr. Bono. Will the gentleman yield? 

Mr. Berman. Sure. 



9.'^.9R7 Qf? - 4 



94 

Mr. Bono. There is a price to pay for that protection, to give up 
your property. I mean, a song is like a chair. PubHc domain means 
you don't get the money anymore. 

Mr. Berman. It is the Constitution, the legislature, and the judi- 
cial branch that gave meaning to — well, we are getting back to the 
state of nature in a way, but gave meaning to this notion of your 
exclusive right to control and exploit your property. 

And I guess we could take Mr. Murphy's suggestion of a tem- 
porary moratorium and just make a permanent moratorium on the 
expiration of copyrights. At some point, you have to — at some point 
the property right is going to end. I mean, I haven't heard any seri- 
ous discussion that generations after you have created it 

Mr. Bono. Why can't the family keep it? It is an asset? 

Mr. Berman. How far down? 

Mr. Bono. Like a house or a car or like a painting, like any 
asset, it should be whoever created it. 

Mr. Berman. The Founding Fathers said this was in order to en- 
courage you in your work. For a limited amount of time, you would 
be protected. We are talking about, and I support the extension. 

Mr. Bono. I would like to have the choice of the protection. 

Mr. Berman. Well, I think you will need a constitutional amend- 
ment to do that. 

But I would like to ask just a few questions of the panelists. 
First, Jack Valenti, when you deal with a motion picture — I know 
this could drift into other issues that you are not here to testify on, 
and I don't mean it to — what is the life of the author? Is it the stu- 
dio that owns the copyright? Is it the producer who produces it? 
What is the life of the author? 

Mr. Valenti. The answer, Mr. Congressman, is it is not life of 
the author under works for hire. It would be 95 years, period. 

Mr. Berman. Ninety-five years. Because it is this kind of 

Mr. Valenti. Under the works-for-hire concept, one can be a per- 
son or one can be an enterprise. 

Mr. Berman. Persons under present law get life of the author 
plus 50 

Mr. Valenti. Right now it is 50 years. Under the European 
Union, it is life plus 70, which is the trampoline from which this 
whole hearing springs, in my judgment. 

Mr, Berman. What is the European Union's directive doing with 
respect to motion pictures? How is it changing existing law? 

Mr. Valenti. It would mean that a motion picture that is in 1 
of the 15 member States of the European Union produced in 1 of 
those member States, would have a life expectancy in the market 
of thorough protection by the government for the life of the author 
plus 70 years. It goes into effect 

Mr. Berman. I am confused about this as to motion pictures, the 
life of the author. 

Mr. Valenti. In Europe there is a different concept. 

Mr. Berman. You don't have work for hire in Europe? 

Mr. Valenti. They have what they call moral rights. It comes 
from the French phrase, droit morale, which gives the right to the 
author under a theory called the auteur theory. In Europe it is the 
director who has the authority over that motion picture, no matter 



95 

who invested money in it or who produced it, et cetera. It is a dif- 
ferent concept than ours. 

Mr. Berman. I understand. And I am just trying to translate 
that into the different ways we treat copyright protection. In the 
United States under the 1976 law, then, a motion picture is pro- 
tected for a set period of years, which is what? How many years 
under existing law? 

Mr. Valenti. Correct. Fifty now. 

Mr. Berman. Seventy-five years? 

Mr. Valenti. Excuse me. I am sorry; 75, because you are going 
20 more years in order to match the Europeans. Forgive me. I 
erred. It is 75 years. 

Mr. Berman. And the chairman's bill would extend that 20 addi- 
tional years in the case of motion pictures? 

Mr. Valenti. Correct. Correct. 

Mr. Berman. Well, 20 additional years in all cases, but that is 
how it would work here. From 75 to 95. 

Just on the issue, since there is nobody testifying against the 
copyright extension, the statement that works in the public domain 
don't get effectively — clearly, I am for the bill. I think the trade ar- 
guments are compelling and I think the notion of rewarding the 
creator and thereby incentivizing the creator and the creator's heirs 
for a reasonable period of time, not for centuries, but for a reason- 
able period of time, argues for the bill and that is why I am a co- 
sponsor of it. 

But one of the arguments being given by some of you is that in 
addition works that go into the public domain lose value and don't 
get exploited. But books that have gone in the public domain, all 
kinds of classical music is in the public domain. People have found 
it economical to publish them and to produce the sheet music from 
which symphonies in the public domain are performed and re- 
corded and sold. 

I mean, there is still value to a lot of those works. How would — 
am I wrong about that? 

Mr. Valenti. I don't want to speak about sheet music. I will 
leave that to Mr. Murphy and the music I will leave that to 
Marilyn. 

In the movie business, let me give you the argument that I have 
read in several papers which are in opposition, mostly by academ- 
ics. And I haven't read any paper by anybody who is a professional 
in the business who is opposed to this. 

The academic argument is that, one, the customer benefits be- 
cause he gets these public domain properties cheaper. The answer 
is let's take "It's a Wonderful Life" in the public domain. I pay $52 
a month for cable, and when it is shown on cable, my cable bill is 
not reduced 1 cent. When it is shown on television, the television 
station charges the advertiser the same rate that he charges him 
for the hour previously, if it is in fringe time. 

There is no economic benefit to the consumer that I have been 
able to figure out. I have read a paper by Mr. Gomery of the Uni- 
versity of Maryland in which he is talking about — he made his 
principal pitch on silent film and if you had public domain, silent 
films would suddenly become very popular. But even the ones that 
are in public domain now, the distributors of public domain films 



96 

are fortunate and happy to sell a few hundred copies. So we are 
talking about an infinitesimal amount in the marketplace. 

The fact is, Mr. Berman, that a picture that is in public domain, 
unless it is a unique thing, like "It's a Wonderful Life", which of 
the 500,000 films on deposit at the Library of Congress, stands out 
singularly, nobody invests money to enhance that film. 

Beethoven is different. I presume you can put out some sheet 
music on Beethoven or make a copy of the Beethoven symphony. 
But when you are mucking around with a negative on which you 
have to spend hundreds of thousands of dollars on that negative 
and knock off the prints on that, too, you are talking about a siz- 
able investment and, therefore, few people are willing to make it. 
That is why some of these public domain prints become so haggard 
after a while. 

I have seen some "It's a Wonderful Life" renditions on television 
that I think it is a disgrace to put on the air, with lines across it 
and the print is in a debilitated form. 

Mr. Murphy. Mr. Berman, two examples that come to mind 
about the public domain and its value — what it means. When you 
think of what happens in the Soviet Union or in any country where 
there is absolutely no control over copyrighted works, you don't 
have any products available, be it classical music or anything. Peo- 
ple will not invest where there is no stability or no copyright base. 

Where the copyright base is there and there is protection for 
copyright, people are willing to invest and they make the products 
available. It is truly that simple. I was president of G. Schirmer 
Music Co. before I came to head up NMPA and the Harry Fox 
Agency and G. Schirmer was the leader in the world in producing 
classical music and educational music. 

And in our repertoire we had a lot of classical music and we had 
a great deal of difficulty competing with China and the Philippines 
and places where they would produce product and ship it on into 
the United States from Asia where it was cheaper to manufacture, 
so we didn't do it. 

What we did do is things that were copyrighted and often the 
copyrighted works are what actually carried our expenses to put 
out works which we wanted to have for a full repertoire. So you 
would bring the classical music out, but also hopefully get some 
royalties from other works from ASCAP and BMI from some of our 
composers. 

Mr. Berman. Let me make sure I understand how the whole 
copyright law works. When Toscanini conducts and some record 
company records a Beethoven symphony which is in the public do- 
main, is that Toscanini recording conducting the New York Phil- 
harmonic in a Beethoven symphony, is that a copyrightable record? 

Mr. Murphy. No, sir. No, it is not copyrightable. You may — 

Mr. Berman. Somewhere, a record company over and over and 
over again has decided that notwithstanding, that it is not pro- 
tected, notwithstanding that there is value in going out 

Mr. Murphy. Have you copyrighted "Circle P," that is a copy- 
rightable work as a phonogram. "Circle C," — ^the music itself— is 
not copyrightable unless you do an arrangement of that work, there 
may be rearrangements of a public domain classical work which 



97 

are copyrightable. Although the preponderance of classicals work 
that is out there for "Circle C" is in public domain. 

Ms. Bergman. If I may, I think that you stack the deck a little 
bit when you go to Beethoven. I think the earlier example that Mr. 
Murphy gave of the Samuel Barber piece is a better example of a 
work that was created some 25 or 28 years before it found an audi- 
ence. 

Now, that is very common in the world of serious music. I don't 
like to use the term "serious music." It makes our music sound friv- 
olous, but I mean classical music. But it also happens in popular 
music where one never knows when a piece of music is revived, a 
song that either had a life at one time and expired and then is re- 
vived by a contemporary artist and becomes a hit. 

I submit 

Mr. Berman. But the problem for that is the unfairness to the 
original creator and his heirs. 

Ms. Bergman. That is the point. 

Mr. Berman. It is not that that won't happen. No works will dis- 
appear necessarily. 

Ms. Bergman. But your question went to the promotion. Who 
then is going to print sheet music? Who then is going to work on 
the song from the creator's point of view? If you are depending 
upon the creator himself or herself, it might not be economically 
feasible. It may be the one song in somebody's catalog that earns 
them some money long after the copyright is gone. You never know 
where and when an older work suddenly gets a second life. 

And I think this goes to the heart of the whole concept of intel- 
lectual property as property. And I certainly agree with Congress- 
man Bono that at the heart of that argument, property is the oper- 
ative word here and it is no less real because it comes from the fac- 
tory of someone's mind as this cup that somebody made, which is 
not biodegradable, may I add. 

But I don't think that a piece of intellectual property should be 
biodegradable either. And I think why we are here today is pre- 
cisely what you were talking about to enhance the right of the cre- 
ator and extend the length of the protection of the work. 

Mr. Berman. And put the Government on the side of enforcing 
those rights. 

Ms. Bergman. Exactly. Exactly. Exactly. 

Mr. Berman. Thank you, Mr. Chairman. 

Mr. Moorhead. Thank you, Mr. Berman. Our next questioner 
would be Xavier Becerra. 

Mr. Becerra. Remember to say the H, Mr. Chairman. Xavier. 

Let me ask a question to anyone on the panel who wishes to try 
to answer this. Back in 1976, when we did alter the copyright laws 
to extend them for the 20 years, there was some debate about who 
would receive the right to that extended copyright. 

Ultimately, the right was given to the owner of the copyright and 
not to the author, if the author had transferred that right to the 
present owner, the publisher, for example. 

What was conceded to the author was a 5-year period under 
which the author, if he or she submitted some type — or initiated 
a termination of that right, could then during that 5-year gap, get 
full rights to that copjn-ight. 



98 

I just realized in reading — in preparing for the hearing that the 
current legislation that we have before us, H.R. 989, doesn't alter 
the language in the current law which says that the right goes to 
the owner, but can be canceled by the author if the author acts 
within 5 years, the time under which the right would expire for the 
possessor of the copjn^ight. 

I don't know if that was an oversight, Mr, Chairman, on the part 
of the sponsors and the cosponsors of the legislation, but I would 
be interested in hearing the opinion of the panel as to whether or 
not we should be providing the same type of protection to the origi- 
nal authors of that work that we provided in 1976, a 5-year right, 
which I understand in many people's eyes was a major concession 
on the part of the authors since no one bargained for an additional 
20 years back in 1976. And I suspect the same thing applies now 
in 1995 that no author or current owner or purchaser of that copy- 
right bargained for an additional 20 years. 

Mr. Valenti. I cannot speak for other members of the panel be- 
cause there is a difference in this gossamer sculpture of an author. 
Marilyn and Alan Bergman are authors. They write their songs. 
They do not deploy 100 people to help them. I guess they sit in a 
room and do it alone. You don't sit in Hollywood Bowl when you 
are creating, do you? 

Ms. Bergman. No, sir. 

Mr. Valenti, They are authors, Samuel Barber is an author. He 
wrote a s3miphony. In the movie business we are the only art form 
in this country that I know about that is collaborative, I guess a 
stage show would be the same thing, 

Mr. Berman. And legislation is. 

Mr. Valenti. It is a collaborative effort. You deploy a hundred, 
a thousand people on the set. And who is the author? That is why 
the author in the motion picture, the copyright owner, can be an 
enterprise that puts the money together and organizes the entity. 

A good example, tell me who the author is of "Gone With The 
Wind"? It was written by Margaret Mitchell and the book was 
bought by David O. Selznik, whereupon he hired, count them, 
seven different directors. Hired one, they get on the set; fired him 
and finally brought on a fellow by the name of Victor Flemming. 
He finished the picture. He hired, count them, over 20 writers. 

Mr. Becerra. Let me interject. I think the case of films is dif- 
ferent because we do in this country recognize work for hire. But 
in the case of those works 

Mr. Valenti. 1 will withdraw from the microphone. 

Mr. Becerra. I am more interested, I guess I should say, in 
hearing from the publishers or ASCAP, those people who represent 
both the original authors and those who purchase the rights to that 
copyright; in many cases the publishers. 

Should we be providing the same type of extension, even if it is 
the minimal extension of 5 years, to try to terminate that right 
that we provided back in 1976? As I understand it, correct me if 
I am wrong, the legislation that we have before us does not alter 
section 304(c)3, which provided for that 5-year time period within 
which to revoke the transfer. 

Ms. Bergman. My counsel just handed me a note which says be- 
cause the bill doesn't alter the existing termination right, it still 



99 

would be — and I cannot read this word. Looks like "placed" and the 
author, if he exercised the termination right, would recover the 
copyright for an additional 20 years. It was considered in drafting 
the bill. 

Mr. Becerra. And maybe your counsel could come to the mike. 
As I read section 304(c)3, as I have it here, the right — the language 
is very specific. It doesn't say it is a 5-year right to terminate at 
expiration of the current copyright. It says 5 years within which to 
terminate after 56 years. 

So once 56 years expires, you are out of luck. And this 20-year 
extension would still not help those authors who had works back 
in the 1920's and the 1930's who are about to expire because the 
56 years would expire for them in many cases in the mid 1990's 
or 1997, whatever the case may be, but they will not get the extra 
20 years. We would have to amend the language to say over the 
next 76 years. 

Give us your name. 

Mr. MOORHEAD. Take the mike. 

STATEMENT OF FRED KOENIGSBERG, COUNSEL, ASCAP 

Mr. KOENIGSBERG. My name is Fred Koenigsberg. I am counsel 
to ASCAP. I thank you for the opportunity to answer the question. 

This point was considered. Congressman, very carefully. The ter- 
mination right that is provided in section 304, which allows the au- 
thor to recapture the work at the end of 56 years would still be in 
effect even for those works that were originally published in the 
1920's as you just alluded to. But the recapture that the author 
would then have under the bill as drafted and as introduced would 
be a recapture not for the last 19 years of the copyright term, 
which is what the 1976 act provides, that is 56 years into the 75- 
year term, but it would be a recapture at 56 years for a 95-year 
term. So that the author would then be recapturing not 19 years, 
but 39 years, the entire remainder of the copyright term. And that 
takes care of the author's rights fully. 

It is not that the author needs another termination right. To the 
contrary, the existing termination right would enable the author to 
recapture this entire extension period as well. 

And the bill, as drafted, doesn't have to provide for an additional 
termination right because by keeping the termination right exactly 
the way it works under current law, it enables the author to recap- 
ture not merely for the remainder of the old copyright term, but for 
the remainder of the extended copyright term as well. 

And as Mr. Murphy's testimony indicated, there is a delicate bal- 
ancing here. There is a question of publisher's rights, of author's 
rights, and obviously that has to be discussed and worked out. But 
the point was most definitely considered in the drafting of the bill 
and was considered, I think, from the perspective that have you 
looked at it. 

Mr. Becerra. Let me ask this question, and follow me through 
on the scenario. Someone writes a song in 1923. Under this current 
law and under this legislation, you are given 56 years 

Mr. Koenigsberg. The song was written in 1923? 

Mr. Becerra [continuing]. And say the author perishes, dies in 
1923. So you are given — ^you count the 56 years, correct? 



100 

Mr. KOENIGSBERG. Right. Which takes us to 1989. 

Mr. Becerra. And then you count a 5-year period. 

Mr. KOENIGSBERG. There was a 5-year period from 1989 to 1994 
under which the author's heirs could have recaptured that copy- 
right. And, presumably, if it was a work of commercial value and 
if they did not reach an agreement with their existing publisher — 
which in many cases occurred because they were happy to reach 
agreement; but, presumably, if they wanted to recapture it then, 
they did recapture it; and they have recaptured it. 

Mr. Becerra. Let's say someone didn't negotiate during that pe- 
riod or didn't try to terminate during that 5-year period in 1989 to 
1994, for whatever reason, believing that there was no reason to 
try to extend the right for those extra 20 years. 

Mr. KOENIGSBERG. For the extra 19. 

Mr. Becerra. Now, it is 1995. This legislation passes, and now 
we have extended the right of the copyright another 20 years. The 
owner now has another additional 20 years. But the author, be- 
cause current language says you must act between 56 years plus 
5, no longer has the right to go to the owner of that copyright and 
say, you have got 20 extra years on something I wrote. That was 
not negotiated when we first transferred the copyright to you. So, 
in essence, that owner of the work is losing 20 years' worth of copy- 
right. 

Mr. KOENIGSBERG. First of all, let's talk about what case we are 
talking about. We are talking about the narrow case where the 
work is older than 56 years today but younger than 75 years. That 
is all we are talking about. 

And I should tell you. Congressman, we very carefully looked at 
this question as well. Don't think we overlooked it. 

The thought was that, in this case, if the work had had any com- 
mercial value at all and if it was in the author's — actually, the au- 
thor's heirs is what we are talking about — interest to recapture 
that copyright, they would have done so for 19 years as readily as 
they would have done so for 39 years. 

Mr. Becerra. But what if the author never knew about the ex- 
tension that was granted in 1976? Say it was an obscure piece 

Mr. Bono. Will the gentleman yield? 

Mr. Becerra. Sure, if I can just finish this; and then, of course, 
I will yield. 

What if the author — it was an obscure piece, never got much no- 
toriety, and all of a sudden Michael Jackson picks it up and, boom, 
it just takes off. What if the person thought why try to pick up 
$200 worth of royalties for the next year for 19 years? I will let it 
expire. All of a sudden Michael Jackson does something with it, 
and the 20 years' extension is granted through this legislation, and 
now there is megadollars being lost by the author because he or 
she may haven't understood the law well, been advised of it and 
now no longer has that opportunity. 

Mr. KOENIGSBERG. That is a danger that always exists. It doesn't 
merely apply to these works. And it is for that reason that au- 
thors — I think particularly in the music area songwriters have 
groups like the Songwriters Guild of America that makes it a point 
of telling their members you have got a work, and it is coming up. 
And publishers do this, too. 



101 

\ 

Mr. Becerra. I am hearing that I shouldn't worry about some- 
thing that affects your membership. You are telHng me that you 
are OK with the way it is. You wouldn't rather see the legislation 
amended to, say, 76 years versus 56 years. 

Mr. KOENIGSBERG. That is exactly right. Congressman. 

I can tell you and Ms. Bergman, as a member of ASCAP's board 
can confirm, that ASCAP's board, who are songwriters and music 
publishers, ASCAP's board voted a resolution that said that this 
bill, the bill that Congressman Moorhead has introduced and that 
you all have cosponsored, is the bill that ASCAP supports. 

Mr. Becerra. Was there any dissension or discord among the 
songwriters or the authors within ASCAP? 

Mr. KOENIGSBERG. There was a great deal of discussion by both 
the writers and the publishers. It doesn't just go one way or the 
other, as Mr. Murphy has pointed out. But the conclusion of 
ASCAP's members was that this was the bill that they were sup- 
porting. 

Mr. Becerra. Thank you. Let me yield to my colleague. 

Mr. Bono. Thank you. 

You raise an excellent point, and it is a classic case of legal 
knowledge and very little knowledge about legalities. And what can 
easily happen is what you are talking about, is that a nonlegal 
mind can just go on with life and suddenly realize they should have 
done something. Not everybody — excuse me, not everybody gets the 
data that the lawyer is conveying to you. Not every songwriter — 
and, again, bear in mind a lot of these guys are kids. They are bril- 
liant, but they are kids who go on with life and forget about these 
things. So it is a strange situation. 

And I think this — I think your point is very well taken. I think 
at the point of transition that the songwriter could be informed 
that they have rights or should have an opportunity at the point 
of transition, but on the one hand you are doing the songwriter a 
tremendous favor. You are letting some guy maybe in the south 
who wrote three songs and they hit be a source of income for him 
for his annuity all his life, so that is wonderful. 

But, on the other hand, like you say, this other scenario could 
get played out; and he could blow billions. So, you know, I think 
it is only fair that there is some effort made to inform them of this 
situation. 

In most cases, probably 99 percent of the cases, the songwriter 
would say, great, we want the extra time — I know I would — and 
probably would not grumble about that. But it is an excellent point, 
and that occurs. The publishers have a battalion of attorneys. The 
songwriter has none. 

Mr. Becerra. I thank the gentleman for his insightful com- 
ments, and I will yield to my other colleague from California. 

Mr. Berman. I understand the songwriter who decided to con- 
tinue the publisher, not terminate the publisher and continue him 
for 19 more years, probably would make the exact same decision 
if it was 39 more years. I mean, it is hard to understand the situa- 
tion where he would not make that extension. 

It is the flip side that I am wondering about in terms of the pub- 
lishers. This reminds me of one of my less successful entries in the 



102 

copyright field with a Supreme Court case called Mills Music where 
I got chewed up on all sides. 

But is — Mr. Murphy, are you saying that you think it is all 
right — we agree that it is all right for the songwriter to be able to 
cut us out of 19 more years even though we did all the work, ex- 
ploited it and did all this stuff to make it a successful commercial 
effort. It is all right to cut us out for 19 more years but not to cut 
us out for 39 more years? 

Is that, in a sense — that that — are you taking the other side, in 
a sense, of Mr. Becerra's question and wanting the bill to change — 
whatever publishers were on the board of ASCAP don't reflect your 
view on thus issue? 

Mr. Murphy. Yes. What we are saying is we want a balance of 
the publishers' rights. If there is a term extension, we would like 
to see the balance be kept so that the publishers would be able to 
receive an additional term extension, if you will, as the writers 
would be. 

Mr. Berman. You would be able to if they don't terminate you 
after the 56 years; right? 

Mr. Murphy. That is correct. 

Mr. Berman. But if they do terminate you, then you are no 
longer terminated for the next 19 years before it goes into the pub- 
lic domain. You are terminated for 39 years, and that bothers you? 

Mr. Murphy. Yes, sir. 

Mr. Berman. Thank you. 

Mr. Becerra. I will leave this point, other than to say it almost 
feels patronizing to think that we need to do something for you if 
you all don't think it is necessary. So I will drop it for now. 

But I am a bit concerned that there may be some songwriters or 
others who write a copyrightable work that may not find the same 
protection afforded to them that was afforded in 1976. And it was 
hotly debated then as to whether the rights should adhere to the 
owner rather than the author, and the burden is on the author to 
somehow terminate that right or that extension to transfer that 
right. 

If anyone on the panel is interested in answering this question, 
if I can get a brief response, we are considering extending for an- 
other 20 years; and I am a cosponsor of this legislation to do so. 
Can we expect that in another 10, 15, 20 years we will be hearing 
from you all again to extend another 15 or 20 years because peo- 
ple's life expectancy has grown and because Europe is doing some- 
thing different as well? 

Ms. Bergman. I think that most of us have made clear that this 
request is in response to the life-plus-70 that the European Com- 
munity will be entering into a month from now. 

The life-plus-50 was based on an agreement in Berne, which was 
to cover two generations. That was the original plan. Two genera- 
tions now is longer than it was. 

Mr. Becerra. So would it be your opinion that if Europe changes 
its current regimen and says life-plus-90 

Ms. Bergman. I think the trade argument speaks to that. I think 
if, at a certain point, it becomes clear, as it is now to us, that our 
country will be operating at a disadvantage in terms of the balance 
of trade, then, yes, I don't see why it shouldn't be reopened. If the 



103 

trade argument is valid for life-plus-70 then maybe some day it 
would be valid for life-plus-90. 

Mr. Becerra. We want to be sure that we are competitive in the 
market. 

Ms. Bergman. Exactly. 

As the only songwriter on this side of the table, I think there is 
some confusion that I hear about the way the word owner, author, 
artist, songwriter is being used. Sometimes they are used inter- 
changeably here this morning. And I am sorry Mr. Valenti is not 
here; but, for example, the author of "The Way We Were" on the 
copyright form in Washington is Columbia Pictures. It is not us. 

And, as he said, my husband and I and Marvin Hamlisch sat 
alone in a room. It was not quite the same thing as Victor 
Flemming and a team of directors working on a sound stage creat- 
ing the whole frame of the movie. 

And under that contract, Congressman Bono, because this enter- 
prise is the author, yes, the words can be changed; yes, the music 
can be changed; and, yes, we don't have control because it was a 
work for hire. 

Mr. Bono. I understand. 

Mr. Becerra. Thank you very much for that. 

And let me just short-circuit this. I close with just a question for 
Mr. Richmond. Mr. Richmond, can you tell me — again, briefly, be- 
cause I know my time has expired, pretty much — what efforts have 
been made to protect or preserve works of less general or public 
recognition or less industry recognition such as some of the works 
done by early black filmmakers or — there is a particular film that 
comes to my mind, "The Salt of the Earth," which I thought was 
a tremendous piece; but, obviously, it was a low-budget piece that 
talked about a subject that may not be that appealing to the gen- 
eral audience. 

What is the preservation board doing in regards to works which 
are culturally and historically important to this Nation but may 
not have always been considered culturally and historically impor- 
tant? 

Mr. Richmond. Well, I think what the board is doing — the main 
thing they are doing is trying to get the legislation passed for the 
National Film Preservation Foundation, because that is the entity, 
working with the Nation's archives, that will focus on the preserva- 
tion of films that do not have a Hollywood studio with both the eco- 
nomic interest and the financial capabilities of preserving it. 

Many archives throughout the country do have to focus on those 
kinds of films. Many of the black films, films by black filmmakers 
that you are talking about, I know have been preserved or are 
waiting to be preserved at the Library of Congress, at the South- 
west Film and Video Archive in Texas and at other archives 
throughout the country. 

So the archival community certainly is aware of the importance 
of this. We spend a lot of time trying to acquire the footage we 
need on these types of films that we know are especially in danger. 
And we do prioritize trying to preserve them. 

But it is our inability right now to stay ahead of the race against 
time that is really the impetus to the legislation that we have been 
talking about today. 



104 

Mr. Becerra. The legislation speaks about, with regard to the 
foundation, creation of the foundation, about providing for a diver- 
sity of points of view from the film community, and it does mention 
the different players within the film community. 

I am wondering what your opinion would be about extending 
that beyond diversity of the film community. Because I know for 
the longest time there were few people who spoke up for black 
filmmaking or for the growth of Latino artists within the film in- 
dustry. How do we make sure that there is a voice that reflects 
that portion of the American community? 

Mr. Richmond. I think including historians and educators in the 
process would be a very good thing. 

Mr. Becerra. We currently do include them. And I know that 
the preservation board has a membership of about 20, and it is 
fairly specific in the law as to who sits on the board, from which 
associations and which sectors of the industry. And I believe there 
are two or three members who are appointed at large. 

Do you know what the membership is of the current preservation 
board? For example, how many African-Americans or minority 
members might sit? 

Mr. Richmond. I am sorry. I am not a member of the board, and 
I am not familiar with the current membership. 

Mr. Becerra. Do you think it would be worthwhile to have lan- 
guage in the legislation that reauthorizes not only the preservation 
board but also the foundation, that considers not only the diversity 
points of view of the film industry but the diversity of the points 
of view of the American community? 

Mr. Richmond. I think the intention of the foundation is to in- 
clude that kind of diversity of input, and anjiihing that can be done 
to ensure that I would be very much in favor of 

Mr. Becerra. And I am happy to hear you say that. 

I see nothing in the legislation, as it is currently drafted, which 
would urge in the formation of the foundation's board, or even in 
the current preservation board, that we move toward ensuring that 
type of diversity to the degree — as the language is — to the degree 
practicable. 

Do I hear you saying that that is something that you think might 
be worthwhile considering, including diversity beyond that within 
the film industry? 

Mr. Richmond. I would be very much in favor of that, yes. Input 
from the broadest range of the American public is necessary in 
making decisions on what does get preserved with the limited fund- 
ing that is available. Even with the foundation in place, realisti- 
cally, not everything gets saved. It is impossible. Not everything in 
any area of life gets saved. So, hard decisions have to be made; and 
those decisions should be as informed as possible. 

Mr. Becerra. I agree. And I think these days we are recognizing 
more and more that there are works out there that are culturally 
and historically significant which maybe 10 or 30 or 40, 50 years 
ago we would never have considered them as such. And I think you 
are right, and I hope we head in that direction with this legislation 
as well. 

Thank you, Mr. Chairman, for the time. 



105 

Mr. MOORHEAD. Thank you. And I want to thank this panel. It 
has been excellent. We appreciate you coming over and contribut- 
ing to this discussion. 

Mr. CONYERS. Mr. Chairman, could I add my compliments to the 
panel and to Mr. Valenti who recently had to leave because of a 
time consideration? But I think this has been an extremely reward- 
ing discussion about some very important issues within the two 
pieces of legislation that you have commented on. Thank you very 
much. 

Mr. MoORHEAD. Thank you. 

I am going to ask the second panel to come forward. 

Our first witness on the second panel will be Ms. Martha Coo- 
lidge, who is the cochair of the Directors Guild of America's Presi- 
dent's Committee. Ms. Coolidge is one of today's most well-known 
directors. She directed two major film productions back to back in 
the past year: "Angle" and "Lost in Yonkers." Ms. Coolidge has di- 
rected other award-winning movies such as "Rambling Rose" and 
"Valley Girl." 

She holds a masters of fine arts degi-ee from New York Univer- 
sity and started her professional career by directing award-winning 
documentaries. She helped to found the Association of Independent 
Video and Filmmakers, Inc. She serves on the board of directors of 
the Directors Guild of America, Women in Film, the American Film 
Institute, and was named to the dean's advisory board of UCLA's 
School of Theater, Film and Television. 

Welcome, Ms. Coolidge. 

Our second witness will be Jeffrey P. Eves. Mr. Eves is the presi- 
dent of the Video Software Dealers Association. The VSDA rep- 
resents over 20,000 video retail stores in North America. 

Prior to his present position, Mr. Eves was the corporate vice 
president of Fort Howard Corp. He served in senior level manage- 
ment positions in the areas of international trade government and 
market. Mr. Eves was appointed by President Nixon as Special As- 
sistant to the President and Chief Liaison between the White 
House and the business community and by President Ford as Di- 
rector of White House Conferences. 

He holds degrees in business from the University of Nebraska 
and in economics firom the University of California at Berkeley. 

Welcome. 

Our third witness is Mr. Michael Weller. Mr. Weller is a play- 
wright and screenwriter, having written over 40 plays and screen- 
plays, including "Hair" and "Ragtime." He is a member of the Writ- 
ers Guild of America East and the Dramatists Guild of America, 
where he serves as a council member. 

Welcome. 

Our fourth witness is Ms. Judith M. Saffer, assistant general 
counsel of Broadcast Music, Inc., BMI, one of the Nation's largest 
performance rights society. 

Ms. Saffer was a graduate of the New York University Law 
School, a member of the executive committee and the president- 
elect of the Copyright Society of the United States. She is also sec- 
retary of the Foundation for a Creative America and is active in 
the American Intellectual Properties Lawyers Association. 



106 

Before commencing her career in the law, Ms. Saffer was a pro- 
fessional ballet dancer with the Ballet Russe de Monte Carlo and 
appeared in films and television as an actress and dancer. 

Welcome, Ms. Saffer. 

We have written statements from our four witnesses, which I ask 
unanimous consent to be made a part of the record; and I ask that 
you all summarize your statements in 10 minutes or less. 

Again, I ask that the subcommittee hold their questions of all 
four witnesses until they have completed their presentations. And 
I feel we are very fortunate to have such a very fine panel today 
and with so many accomplishments. 

Mr. Becerra. Mr. Chairman, I hate to interrupt, but I do notice 
that it is 11:30, and we probably took a lot more time with the first 
panel than we should have. I know that each panelist has a great 
deal of information to provide. 

We do have their written testimony, and I would urge us to ask 
the panelists, as much as possible, to limit their opening state- 
ments so we can have as much time to engage in a good dialog with 
them and have the question-and-answer period extended, because 
I know we are going to start losing members because we were told 
that the hearing would end at about 12. 

Mr. MOORHEAD. I don't want to limit them too much, because 
they have waited for a long time. Use those comments with discre- 
tion. 

Mr. CONYERS. Mr. Chairman, I respectfully enjoyed the discus- 
sion that my colleague engaged in, so for him to suggest that 
maybe the witnesses ought to be briefer might come at a little bit 
inopportune moment. 

This panel will not convene again, and I know that members 
have to leave. We are very important people. But let's give them 
as full a time as possible. Normally, it is a 5-minute period, but let 
us be as generous as we can. 

Mr. Becerra, And, Mr. Chairman, I meant in no way to limit 
them. I only wish to be able to participate, as I know some of the 
individuals who are on the panel probably have some urgent mat- 
ters to care for. And I would hate to see that we lose some mem- 
bers because we all have things to do. And I would love to have 
them talk as much as possible. 

Mr. Moorhead. Well, let's let the witnesses get started. 

STATEMENT OF MARTHA COOLmGE, MEMBER, DIRECTORS 
GUILD OF AMERICA, INC. 

Ms. COOLIDGE. My name is Martha Coolidge. I am a feature film 
director and a member of the Directors Guild of America and a 
member of its president's committee, which has guided our legisla- 
tive efforts in Washington. 

I am here to ask the subcommittee to support H.R. 1248, the 
Film Disclosure Act, in the name of fairness to consumers and to 
film artists as well. 

What we would like to see is a simple statement of fact regarding 
motion pictures altered after their initial release and shown on TV, 
airlines, and cassettes. Tell consumers clearly and succinctly how 
the movie has been altered and give the director, screenwriter, and 
cinematographer a chance to object if she chooses to do so. 



107 

Hardly revolutionary, H.R. 1248 is a truth-in-the-marketplace 
bill entirely consistent with current practices which tell consumers 
about the products they buy. 

Soon I will be completing my next major film, "Three Wishes." 
It will be released at about Thanksgiving, and I hope that you will 
all come to see it and you will bring your families, and I hope that 
you will see it more than once. 

About a year from now, "Three Wishes" will start to show up in 
the ancillary marketplace — on cable, in hotels, on airlines, on cas- 
settes, and then perhaps on the networks and then syndicated tele- 
vision. What is virtually certain is that when this film is distrib- 
uted in these markets it is going to be altered. Shot for the wide 
screen, it will be squeezed into a square TV form and edited for TV 
viewing, not for violence or sex but to fit in an assigned time slot. 
And it may be speeded up on TV, a process called lexiconing, de- 
stroying all my careful timing. 

I have high hopes for this movie, commercially and artistically. 
I am applying the 25 years of experience I have in directing films 
to guide this project frame by frame to the best possible outcome. 
It is my reputation that is on the line when people see this film. 
And when they see less than I have given, I would like them to 
know that. 

When "Three Wishes" is altered in the ancillary markets, I would 
like people to know how it has been altered; and I would like the 
opportunity to object to these changes if I judge them egregious. 
This is all that H.R. 1248 seeks to accomplish. 

I consider myself a film artist. I am a painter, a storj^eller, using 
motion picture cameras, sound, and music. I am involved in an art 
form, the great American art form; and what we do in making 
films enriches the artistic and cultural heritage of our country. 

Let us treat the people who see movies and those who craft them 
with the modicum of legal respect this bill provides. 

What will happen if the labels in the Film Disclosure Act are ap- 
plied to films? Great upheaval in the marketplace if you listen to 
our opponents. But where is the evidence for this? There are three 
labeling regimes in place today, including the inadequate one from 
the MPAA, and no economic catastrophes have ensued. 

The companies have a history of opposing every innovation on 
the basis that the sky will fall, and it is appropriate for the sub- 
committee to keep this in mind. The companies have argued that 
TV, the director's cut, and even VCR's would all ruin the motion 
picture industry. Not only were they wrong, but all of these ad- 
vances have vitalized the industry economically. And judging from 
this history, if the subcommittee wanted to boost the financial for- 
tunes of the producing companies and distributors, it ought to pass 
H.R. 1248 unanimously today. 

Why do we need a law? Why can't we work this out among our- 
selves? We tried, and we failed. We couldn't get the major compa- 
nies to agree on a factual label that would in any way recognize 
the efforts of those on the creative side. 

But even if we had agreed on the words on a label, we would 
have failed in application because of the complexity of the universe 
of film ownership and distribution. There are too many players. No 
table in Hollywood, nor anyone in Washington where the tables are 



108 

even bigger, could accommodate everyone whose presence would be 
required. 

Here is a personal example reflective of this complexity. A few 
years ago, I directed a motion picture called "Rambling Rose" about 
the awakening of human love. It was not a movie about sex, but 
one sexual scene was critical to the film's plot and the development 
of its main characters. 

The airline distributors simply cut the scene out of the movie, 
turning the story into gibberish. I had offered to trim the scene, 
but my offer was refused. This happened at Academy Award time 
when the film was being considered for nominations. The reputa- 
tions of the actors, the writer, and my own reputation were at 
stake. 

The copyright holder, Carrolco, insisted in defense of the movie 
that the altered version carry a label laying out the alterations, but 
many airlines refuse to buy movies with restrictive labels. Here we 
have the copyright holder insisting on a label and distributors and 
exhibitors turning thumbs down. 

This is an example of the complexity in the world of production 
and distribution and the reason why only a national law can ad- 
dress the matter of labeling. 

Let me briefly add the endorsement of the Directors Guild to 
both of the other measures under review today, copyright extension 
and the reauthorization of the National Film Preservation Act. 

As the Europeans move ahead to extend copyright terms, we 
need to do the same thing as a matter of equity and economics. 

We enthusiastically support reauthorization of the Film Preser- 
vation Act, particularly since the act grew out of our own early lob- 
bying efforts. With funding for film preservation choked off at the 
National Endowment for the Arts, it is more important than ever 
that the Library of Congress continues to hoist the banner for pres- 
ervation efforts. 

Mr. Chairman, I am sure this hearing is a first, taking testimony 
on three different bills that affect directly, though in disparate 
ways, the motion picture industry. I take it as a sign that Congress 
now recognizes the complexity of the economic, artistic, and cul- 
tural issues related to motion pictures. 

In our view, all of these measures advance either a sense of eco- 
nomic fairness related to movies or advance their importance in the 
cultural sphere. The most elemental advance would be to end de- 
ception in the U.S. marketplace and tell consumers when the movie 
they are watching has been altered. This stamp of authenticity is 
a small step to take to enhance respect for our greatest art form. 

And I want to personally applaud Mr. Bono for his concern for 
the creators of songs which I think is very similar to our concern 
for the creators of film, our film artists, 

I just have three things that I would request, Mr. Chairman, to 
be placed into the record: 

The first is the position paper supporting the Film Disclosure Act 
by the American Cinema Editors and by the Motion Picture Editors 
Guild. 

The second is a short letter to you and the committee from 
Jimmy Stewart supporting H.R. 1248. Mr. Stewart has been con- 



109 

cerned with this issue for many years and has visited Congress 
several times. 

And, finally, I am pleased to announce that the Screen Actors 
Guild East and West have officially voted to support the Film Dis- 
closure Act. This is a tremendous vote of support for the bill. SAG 
is a huge union with almost 80,000 members all over the United 
States. And I would like to point out that this position of support 
underscores the traditional relationship of trust between actors and 
directors. 

Thank you very much, Mr. Chairman, for listening to our peti- 
tion. 

[The prepared statement of Ms. Coolidge follows:] 

Prepared Statement of Martha Coolidge, Member, Directors Guild of 

America, Inc. 

My name is Martha Coolidge, and I am privileged to appear before the sub- 
committee today in my capacity as a feature film director and as a member of the 
Directors Guild of America. I have been a member for some years of the DGA's 
President's Committee, which has steered our efforts in Washington to provide 
greater protection for films and film artists. 

Perhaps I am alone among the witnesses giving testimony this morning in being 
enthusiastic about all three pieces of legislation that the subcommittee is consider- 
ing today, though my remarks in the main focus on H.R. 1248, the Film Disclosure 
Act of 1995. 

I would doubt that any other single Congressional hearing has ever focused on 
three bills together that relate so directly, though in disparate ways, to the motion 
picture industry. I take this as a recognition by Congress of the importance and 
complexity of our industry in economic and cultural terms. 

Before the main focus of my remarks, let me briefly touch on H.R. 989, the bill 
extending copyright term, and H.R. 1734, the bill reauthorizing the National Film 
Preservation Act. 

H.R. 989 

Within the last year or so, the European Union has adopted a rule extending the 
term of copyright among its member nations, essentially seeking to harmonize dif- 
fering copyright terms among the countries of the Union. And as is almost always 
the case when the Europeans lead the way, the emphasis is on providing greater 
protection to authors. 

Too often, our own country, the world's leading copyright exporter, follows along, 
rather than leads, in efforts to enhance protection. We must not delay, though, in 
adopting a longer term of copyright protection for reasons that essentially have to 
do with equity and economics. 

It simply is unfair that authors and copjnright holders in Europe should enjoy a 
greater incentive to the production of further work through enhanced protection de- 
nied their American counterparts. There is also what I would call the "Free lunch" 
issue, in which Europeans will be able to enjoy American cop5rrighted works without 
paying for them, though European authors will be compensated. 

The average theatrical motion picture these days costs many millions of dollars 
to make. To recoup this investment, the companies have to distribute product in 
many countries and over a long period of time. 

The copjrright term of a number of landmark films, such as "Gone With The 
Wind," will expire within a few years, even though there is obviously considerable 
commercial value left in the film. Cycling more money through the system through 
an extended copyright term will help insure future production. 

Having said this, it is worth noting that the directive from the European commu- 
nity that encourages a longer copyright term also explicitly states that "the prin- 
cipal director of a cinematographic or audiovisual work shall be considered as its 
author or one of its authors. Member states shall be free to designate other co-au- 
thors." 

Again, as in the case of Berne implementation, we in the U.S. seem spurred on 
to higher levels of copyright protection by following a European model, but we do 
so selectively. So long as we studiously avoid a discussion of moral rights, of natural 
persons as authors, even in a collaborative setting, we will not close the gap of hy- 
pocrisy with which the Europeans regard our copyright policy. 



110 

So, we support the extension of the term of copyright, but we would ask that the 
subcommittee hold hearings on H.R. 1244, the Theatrical Motion Picture Authorship 
Act, introduced by Congressman Bryant, to explicate the issues surrounding moral 
rights. Maybe we can find a way to close this hypocrisy gap completely. 

THE NATIONAL FILM PRESERVATION ACT 

Of course, the DGA enthusiastically supports the reauthorization of the National 
Film Preservation Act, an act which grew out of our earlier lobbying efforts to en- 
hance film protection. 

Without recounting the whole history of this act's passage, suffice it to say that 
in its initial bill form, it offered elements relating to labeling and preservation. The 
labeling elements have been dropped, and in fact, picked up in a more extensive 
way by the Film Disclosure Act. 

But the preservation act, as it is presently constituted, continues to do important 
work, particularly in trying to salvage and restore artistically and culturally impor- 
tant films on the edge of extinction. 

The National Endowment for the Arts used to provide some funding for film pres- 
ervation efforts, but has been forced to abandon these efforts in the face of previous 
budget cutbacks. Given the Endowment's present peril, it seems extremely unlikely 
that any of these ftinds will ever be restored. 

So it seems particularly appropriate that the Library of Congress should continue 
to raise a small banner on behalf of preservation efforts. 

The bill before you adds another title to establish a mechanism for preservation 
fundraising in the private sector in support of the Act's purposes. Given the times, 
particularly the cutback in Endowment funding, we believe this title is a creative 
and necessary adaptation if we as a nation are to continue even mincing efforts to 
save our country's extraordinary film heritage. 

These funding efforts are essentially private and voluntary, and government ap- 
propriations are only available on a matching basis. 

H.R. 1248 

Both of these measures concern us, but the bill that has the most import for us 
is the Film Disclosiire Act, H.R. 1248, sponsored in the House by Congressman Bar- 
ney Frank and in the Senate by Senator Alan Simpson. 

This is the third Congress in which a measure similar to this one has been intro- 
duced; we intend to persevere as do our legislative friends. This subcommittee has 
previously taken testimony on a similar bill, but the times and circumstances have 
changed somewhat, and so we are particularly glad to have another opportunity to 
raise some issues regarding the bill with the subcommittee. 

The purpose of the bill is simple. When a theatrical motion picture has been 
changed, after its initial release, for viewing on, among other avenues, TV or on a 
cassette or on an airliner, tell people. Describe succinctly the changes that have 
been made and give the director, the screenwriter, and the cinematographer a 
chance to object to these changes if they choose to do so. It is the artistry of the 
film that suffers through alterations, and so it is only proper, in oiu* view, that the 
main creative authors ought to have a chance to comment on an altered version. 

We consider this bill in the vein of consumer protection. When a film is advertised 
for viewing on television, either the networks or syndicated television, the public is 
given the clear impression that what they will be seeing is the version they saw, 
or wish they had seen, in the movie theater. 

Our opponents have argued that the viewing public is aware that changes have 
been made to the film when it is shown on TV. We contend that the argument is 
preposterous — the viewing public has no idea of the extent to which feature films 
are routinely cannibalized for TV viewing. 

When the rectangular dimensions of a film's theatrical version are squeezed 
(panned and scanned) into the square format of a TV screen, as much as 45 percent 
of the visual image is lost. To fit a film into a specified time allotment, usually two 
hours, substantial chunks of the film are often edited out — not primarily for taking 
out objectionable scenes of violence or sex, but for fitting in more commercials. Ofi;en 
this gross editing turns a coherent narrative into gibberish. Then you have an insid- 
ious process called lexiconning which speeds up scenes (altering the pace of the per- 
formances), again in order to fit in more commercials. Finally, among the alterations 
most common is the one most well known, colorization, in which a computer's colors 
are added to a film originally shot in black and white. 

Obviously, not all of these alterations are made to all films, but a very, very large 
percentage are subjected to panning-and-scanning and gross editing. Obviously, as 
filmmakers who labor over each scene, we find all of these alterations objectionable. 



Ill 

But we are not here to seek yovir help in ending or deterring these alterations. Abso- 
lutely not! 

What we are saying is that these alterations are egregious and widespread, and 
that the public has absolutely no idea of the extent to which movies shown on TV 
do not reflect the theatrical version they believe they are seeing. 

So, as a matter of truth-in-advertising, simply tell the people. Put it another way. 
Those who oppose labeling are really putting themselves in the position of defending 
false advertising in the marketplace, hardly a high moral plane from which to 
mount a defense. 

But leave morality out of this. The real fear about the labeling bill we endorse 
is that its implementation would somehow cause economic harm to the industry. 
This is always the argument to which the producers and distributors return. 

Firstly, we would advocate nothing that would harm the industry in which we 
make our living. When movies are shown in ancillary markets, as they must be to 
recoup their costs, directors get something out of it, thanks to the negotiated resid- 
ual arrangements. We would not support legislation that negates these arrange- 
ments. 

Secondly, the producers have a long history of wailing how innovations are going 
to ruin the industry. Television was going to ruin movies; VCR's were going to ruin 
movies. Now labels are going to ruin movies. Congress should bear in mind this 
chicken little, the-sky-is-falling style of arguing. If history is any guide, labels ought 
to increase revenue substantially through the public demand for authentic theatrical 
versions in ancillary markets. 

Thirdly, there currently are a variety of labeling regimes in place and operating, 
and there is absolutely no evidence that any untoward economic consequence has 
occurred as a result. 

This really is the crux of the matter. Would labels have a negative impact on the 
production or distribution processes? Based on systems in place, the empirical an- 
swer, the answer with any evidence behind it, is emphatically no. The MPAA has 
produced no factual evidence to support their view. In fact, each time they have 
warned that their fortunes would be ruined by the institution of a new idea, exactly 
the reverse has turned out to be true. 

The subcommittee is aware that the MPAA companies instituted a voluntary la- 
beling system a few months ago relating to the release of new (and altered) feature 
films into the ancillary markets. 

From our point of view, these labels are totally inadequate and misleading. They 
do not provide information succinctly as to what changes have been made in a film, 
nor do they provide an opportunity for a director, cinematographer, or screenwriter 
to object if he or she would choose to do so. 

Let me give an example. When a movie has been edited, the company label states 
that the film "has been edited for content." Clearly, the implication is that the vio- 
lence and sexually provocative scenes have been deleted in conformance with family 
viewing sensibilities. 

But this is the phrase applied to editing, period. Family movies, where there is 
no violence or no sex scenes, bear the same label. If the company labels are crafted 
to be so manipulative, much better not to have them at all. Consumers are being 
gulled when we ought to play it straight. 

What is wrong, or what untoward economic consequence would flow from saying 
"five minutes have been deleted from this film"? There is nothing to be afraid of 
on any level from telling the truth, and that is what the Frank-Simpson bill is all 
about. 

Let me also point out that the labeling regimes adopted by Turner Entertainment 
on their colorized films or the American Movie Classics cable channel have not and 
do not harm in any way the marketing and distribution of films. 

(Turner Entertainment adamantly opposed the original adoption of the National 
Film Preservation act because of its labeling provisions. Within weeks of passage, 
and before the Library dropped these provisions, Tiimer began running labels on 
all its colorized films, again doing no discemable marketing damage whatsoever.) 

Let me also point out that the MPAA companies lobbied the FBI successfully so 
a very official looking label warning of piracy infractions goes on cassettes. So the 
opposition by the MPAA to official labels is pretty selective. 

Why do we need a law? Why can't we sit around a table in Hollywood and work 
this out? 

We tried. And we failed. We failed because we wanted the labels to be clear about 
the alterations that were made, and because we wanted an artistic author's dis- 
claimer. 

And we failed because in a very important regard the MPAA could not deliver on 
a promise it made to Congress in encouraging voluntary discussions. 



112 

The MPAA had said that any agreement we reached would be embraced by copy- 
right holders and distributors across the board. They could bring them along, so 
they said. 

They couldn't; they haven't. And this was one of the main reasons we were reluc- 
tant to begin talks in the first place. As a matter of fact, when we began voluntary 
negotiations, there was an explicit commitment that the networks would go along 
with whatever emerged from the talks. 

When the talks broke off, the MPAA said to us and the other creative guilds sit- 
ting around the table, they would simply go ahead and implement the label they 
found satisfactory and we did not. 

But that is not the label presently appearing on a few feature films because the 
networks, for whom the MPAA was supposedly acting as a good faith surrogate, ob- 
jected. The networks forced the MPAA to make a bad label even worse. As we said, 
the MPAA can't bring all the players to the table; the table isn't big enough. 

In any case, Congressman Frank and Senator Simpson have set out to make the 
American public aware of changes made in films — not a few films, as is the case 
through the MPAA labels, but the 20,000 films in domestic circulation. Film owner- 
ship and distribution is in many hands; only some of which are MPAA companies. 

The simple and indisputable fact of the complexity of the universe of film owner- 
ship and distributorship is the reason for legislation. Only a national commitment 
to inform film consumers will bring all firm copyright holders and distributors 
under the tent of disclosure. 

We would argue that the time for notices on films, such as the labels we support, 
is more important now than ever before. The new digital revolution quickly unfold- 
ing before us provides greater and greater opportunities for manipulating entertain- 
ment and information products. Film labels are nothing more than certificates of au- 
thentication — that something has been changed from the original version you were 
expecting. 

When movie industry officials — and government officials — press the Europeans to 
let our film and television programs pass freely into their countries; when we press 
China to put a stop to the theft; of our films — we hear that all of this is done in 
the name of America's film artists. It is they, we hear, who are being denied the 
rewards of their labor. It is they who craft the artistic and cultural products that 
are craved in foreign markets. 

Would that the producers would take the same line in this country as they take 
abroad. We believe that rhetoric that films are an art form, created by artists, and 
that they are our best and most ubiquitous ambassadors of the American way of 
life. 

We don't believe the producers should play the violins of pathos about American 
film artists when it suits them abroad, only to stand adamantly against a respectful 
regard for films and film artists in this country. 

Telling consumers what changes have been made in a film, giving directors, 
screenwriters, and cinematographers a chance to object, is a small increment of re- 
spect. 

Ms. COOLIDGE. And I believe I am supposed to introduce Mrs. 
Henry Mancini. 

Mr. MOORHEAD. Without objection, the documents are made a 
part of the record. 

Ms. COOLIDGE. May I do that? 

Mr. MoORHEAD. Yes. 

[See appendix, p. 503.] 

Ms. COOLIDGE. Mrs. Henry Mancini has a very short statement. 

Mr. MoORHEAD. Go ahead. 

STATEMENT OF MRS. HENRY MANCINI 

Mrs. Mancini. I will be very, very brief. 

I am the widow of Henry Mancini who passed away last year, 
and I am here to just point out to you that the body of work that 
he left is certainly woven into the fabric of the international music 
landscape. I urge you to pass the legislation that extends the copy- 
right law. 



113 

And, with that, I won't take up any more of your time. Thank 
you very much. 
Mr. MooRHEAD. Mr. Eves. 

STATEMENT OF JEFFREY P. EVES, PRESIDENT, VIDEO SOFT- 
WARE DEALERS ASSOCIATION, ON BEHALF OF THE COMMIT- 
TEE FOR AMERICA'S COPYRIGHT COMMUNITY 

Mr. Eves. Good morning, Mr. Chairman. My name is Jeffrey 
Eves. I am president of the Video Software Dealers Association, an 
international trade association for the home video entertainment 
industry. 

VSDA's 3,000 member companies represent some 20,000 video 
stores and provide more than 500,000 jobs nationwide, and I appre- 
ciate the opportunity to share our views with you on this important 
matter this morning. 

I am here this morning on the behalf of the Committee for Amer- 
ica's Copyright Community. We are a group of industries that work 
together to protect the flourishing U.S. copyright system from so- 
called moral rights legislation. 

We believe moral rights laws, such as the film labeling legisla- 
tion that you are considering today, would disrupt a legal regime 
that is working well for copyright owners, for distributors, for 
American consumers and for the U.S. economy. 

Today I will focus my remarks on the film labeling bill and its 
impact on the people that I represent, the men and women who 
manage and run tens of thousands of stores where American con- 
sumers rent and purchase prerecorded movies on videocassette. 

Mr. Chairman, the American consumers vote with their pocket- 
books every day. They have made home video their No. 1 leisure 
time activity and their top choice for viewing movies. Last year, 
American consumers spent $14.5 billion renting and buying videos, 
almost three times what was spent to acquire and purchase movie 
theater tickets. In fact, each week over 60 million people in the 
United States visit a video store — 60 million people a week. 

You are all probably familiar with the typical video store. As you 
know, it is an environment that lends itself to conversation. People 
discuss whether a movie was good or bad, whether an actor was 
right for the role, whether the movie was as good as the book. I 
can assure you that you will not hear debates on the issue of film 
to video adaptation, which is the essence of the moral rights dis- 
pute raised by some members of the creative community. 

Consumers love the low cost, variety, and convenience offered by 
home video; and they know the experience of watching a movie in 
their living rooms is different from watching it in a darkened thea- 
ter. Consumers do not need a warning label to tell them that, and 
video dealers do not need a disparaging label that seems to discour- 
age renters from renting and buying movies on video. 

I do not mean to take an5rthing away from the creative geniuses 
that are involved in the movie-making process. In fact, in response 
to concerns raised by proponents of this legislation, the motion pic- 
ture industry adopted a voluntary film labeling program in 1993. 

The voluntary program, which calls for labeling of both the video 
and the video package, has been a great success. In fact, we re- 
cently reviewed the top 40 video rentals listed in the May 13th edi- 



114 

tion of Billboard magazine and found that 90 percent of them were 
in compliance with the voluntary labeling program. 

The voluntary label in use today informs the consumer without 
disparaging the video product. It says: "This film has been modified 
from its original version. It has been formatted to fit your tele- 
vision set." And I will show an example or two of that in a minute. 

This voluntary labeling system applies to home video, cable, pay- 
per-view, broadcast television, and every other medium. It is likely 
that the film that was shown on your flight from Washington to 
Los Angeles was labeled under this system. 

In our opinion, the legislation before you is a quintessential ex- 
ample of unnecessary Government regulation. Congressman 
Frank's bill represents Government intrusion into a marketplace 
that is working successfully for the industry and for the consumer. 
This legislation, Mr. Chairman, would seem to have all the charac- 
teristics of a solution in search of a problem. 

While the supporters of this legislation may quarrel with the pre- 
cise wording on the voluntary label, that does not mean that Gov- 
ernment needs to step in in this case. This is an issue that the in- 
dustry can and should resolve on its own. 

The labels included in this legislation would mislead consumers 
by making it appear that they are getting an inferior product when 
they buy or rent a video. Under H.R. 1248, if an artistic author ob- 
jects to any alterations, pay-per-view, cable, and network television 
broadcasters would be required to note the objection in a signboard 
warning at the beginning of the film. The home video release would 
carry the additional burden of permanently noting the objection not 
once, but twice, on the video boxes which serve as the primary 
means of marketing the video product. 

Mr. Chairman, I would like to take a moment and show you a 
video that demonstrates the voluntary labeling program that I 
have been speaking about. I will show you several labeling exam- 
ples, including home video, broadcast television, and pay-per-view; 
and I will compare these labels to the Government mandate label 
for automobiles. I think you will see how much more effective the 
voluntary labels are when compared to the Government-mandated 
label. 

If you will play the tape, the first clip is taken from the home 
video of Disney's "Angels in the Outfield." As you can see here, the 
label is in legible type and displayed in a conspicuous and readable 
basis. 

The second example comes from a Universal film, "The River 
Wild", with Meryl Streep. 

Mr. Herman. Is this on TV or video? 

Mr. Eves. This is on videocassette. Again, this clip comes from 
a video; and it is available in stores all over the country. 

Next, I would like to give you a couple of examples of how these 
labels appear on the home video package. I have copies of a couple 
of movies here, and I think you may have copies of this as well. 
And you will see the labeling in both cases appearing on the back 
side of the videocassette. 

It says: "The film has been modified from its original version. It 
has been formatted to fit your television set." One just like the one 



115 

that you see here in front of you and the kind most everyone 
watches at home. 

As additional evidence — and if you don't have some boxes of this, 
Mr. Chairman or Members, we can certainly pass them out — as ad- 
ditional evidence of the widespread implementation of the program, 
I would like to show you this from the CBS movie that was shown 
on free TV in May viewed by millions of people. It is with Whoopi 
Goldberg in "Ghost." You will notice that the label for the broad- 
cast movies indicates that the film was altered to fit within a 2- 
hour time slot and omits certain content. 

The other example, from a pay-per-view movie offered in Wash- 
ington in May, Arnold Schwarzenegger with "True Lies." And this 
is the labeling that went on that where it talked about the movie 
being formatted to fit the TV screen. 

Now, Mr. Chairman, let's compare the voluntary label to one that 
would be required in H.R. 1248. 

The following label can be found on pages 13 and 14 of the bill. 
What is on the screen is not exaggerated or embellished in any 
way. It is too long and difficult to understand; and if anyone takes 
the time to read it at all, they are going to think they are getting 
an inferior product. A broadcaster who carried that label would be 
inviting the audience to do something else with their time. 

We are concluding with a label that is actually used today, a fed- 
erally-mandated label. You will see it goes through three different 
screens. I am talking about the label required for the advertise- 
ment of an automobile. I don't know how many of you have taken 
the time to read it. 

The particular example that have you seen here comes from an 
advertisement for an automobile broadcast in Washington, DC, in 
May. As you can see, the voluntary labeling program very effec- 
tively informs the consumer about the product that they are view- 
ing without disparaging the product itself. 

A Federal law such as the one proposed in H.R. 1248 is simply 
not necessary. 

Mr. Chairman, I thank you for your time and attention. 

[The prepared statement of Mr. Eves follows:] 



116 

Prepared Statement of Jeffrey Eves, President, Video Software Dealers 
Association, on Behalf of the Committee for America's Copyright Community 

INTRODUCTION 



Mr. Chairman, my name is Jeff Eves and I am President of the Video Software 
Dealers Association. VSDA is the national trade association of home video retailers and 
distributors. We represent the vast majority of the 30,000 video stores across the country. 

Although my expertise is in home video, I am also here today on behalf of the 
Committee for America's Copyright Community. The Committee represents a wide range 
of copyright industries, including producers of books, magazines, newsletters, computer 
software and databases, sound recordings, broadcasting, cable, video, advertising and 
motion pictures. (A list of CACC members is attached). Its purpose is to ensure the 
continued vitality of the American copyright system. This copyright system has made the 
United States the world leader in virtually all areas of creative works. 

Mr. Chairman, we are strongly opposed to H.R. 1248, the Film Disclosure Act of 
1995, which would create a complicated, burdensome, government-mandated labeling 
program to address a problem that does not exist. 

Mr. Chairman, this particular legislation was first considered by your Subcommittee 
in 1992. It remains a solution in search of a problem. American consumers enjoy access 
to the finest of films in the world through a variety of channels - theatre, video, network 
television, cable etc. Since the advent of television, consumers have been able to view 

1 



117 

motion pictures in their living rooms through "panning and scanning," a technique which 
adapts the film to the television screen. 

Mr. Chairman, as VSDA noted in its testimony before this subcommittee in 1 992, 
there has been no consumer dissatisfaction and no call for labeling. Rather, Americans 
have salivated over their ability to view films through television, and more recently have 
welcomed the ability to access films through video rental. Despite the complete lack of 
evidence of a problem, in 1993, the industry itself embarked on a voluntary labeling 
program, sensitive to providing full disclosure to consumers about "panning and 
scanning, " colorization and editing for content and time. 

Today, Mr. Chairman, under the voluntary program, the videocassette jacket bears 
a label indicating that the theatrical version has been adapted. Furthermore, the 
videocassette itself includes a label at the beginning of the movie which says, "THIS FILM 
HAS BEEN MODIFIED FROM ITS ORIGINAL VERSION. IT HAS BEEN FORMATTED 
TO FIT YOUR TV," or "THIS FILM IS A COLORIZED VERSION OF THE ORIGINAL 
BLACK -AND-WHITE FILM." Studios, TV networks, cable networks, TV affiliated 
stations, and independent TV stations have been using these labels since October 1993. 
In fact, we did a survey of the top forty video rentals listed in the May 13 Billboard 
Magazine and found that 90% of the theatrical films that are now in video are already 
labeled. 



118 



This industry-led effort is providing consumers with concise, clear labels so that 
viewers are actually informed rather than confused by scores of differing, complex and 
lengthy messages. The marketplace works. It is not appropnate for government to jump 
in and micromanage this issue. This is not only a bill that would pose terrible problems to 
the film industry, it would be a devastating precedent that would threaten the bargaining 
and contractual process that underlies our copyright system. 

H.R. 1248 is not a simple labeling bill. It is not as it claims, a simple measure to 
inform consumers of changes made to a film's theatre version. In addition to important 
technical adaptations, such as "panning and scanning" described above, the bill also 
would regulate broadcaster editing for community taste and minimal changes made in 
order to meet a preexisting schedule. Under the bill, if a local TV station edited one 
minute from the 4 o'clock movie to expand its news hour to cover a breaking local story, it 
would have to check on whether any of the artistic authors had objected, and if so, include 
a label. This legislation is an administrative nightmare for not only a video store, but 
America's television stations and will clearly impede consumer access to films. 

I. H.R. 1248 WOULD RESULT IN THE DENIGRATION OF HOME VIDEOS 

H.R. 1248 requires notification to the "artistic author" of a motion picture to 
determine objections to any "matenal alteration" to a film. If there is any objection, the bill 
would require a label. For example, if there is objection to "panning and scanning," the 



119 



label must bear the following statement: 

"THIS FILM IS NOT THE VERSION ORIGINALLY RELEASED. IT HAS BEEN PANNED 
AND SCANNED. THE DIRECTOR AND CINEMATOGRAPHER OBJECT BECAUSE 
THE ALTERATION REMOVES VISUAL INFORMATION AND CHANGES THE 
COMPOSITION OF THE IMAGES." This label would be affixed to the video box, not 
once, but in two locations, and then placed on the shelf in a video store to advertise the 
availability of the movie. 

The voluntary labeling program that covers 90% of the films distributed, makes this 
kind government mandated requirement totally unnecessary. A consumer is informed, but 
without having the product denigrated. Under the dictates of H.R. 1248, a consumer is 
likely to perceive that they are being told the altered version is an inferior product, one 
they would not enjoy nearly as much as the original version that had been approved by 
the director and screenwriter. These denigrating labels would be confusing to customers 
and deter them from renting or purchasing the cassette. 

II. H.R. 1248 COULD IMPEDE THE DISTRIBUTION OF FILMS 

H.R. 1248 would create the possibility of restraints on the sale of films after 
adaptation for television or home video. Just as a product is ready to send to a network or 
video retailer, squabbling over whether labeling was adequate could delay the availability 
of the product until it was stale or prevent distribution to the retailer and, more importantly, 



120 



the consumer. 



The bill's complicated, time-consuming process of tracking down the artistic 
author(s) to determine objections to "material alterations" poses significant impediments to 
the distribution of a film. The delay for negotiating an acceptable resolution and 
repackaging the cassettes with an adequate label could deny retailers access to the 
product during the peak marketing window immediately following the principal theatre 
exhibition promotion campaign. The legislation would also provide for an injunction 
against further distribution of inadequately or improperly labeled products, literally pulling 
them right off the shelf. 

H.R. 1248 threatens not only the thousands of mostly small businesses who 
provide motion pictures in videocassette form to the public, but even more importantly, the 
customers - millions of Amencans who look to home video for a wide variety of affordable 
and convenient family entertainment. 



ill. H.R. 1248'S RECOGNITION OF MORAL RIGHTS THREATENS OUR THRIVING 
FILM INDUSTRY 



Along with the other members of CACC, VSDA strongly opposes H.R. 1248 
because applying moral rights to motion pictures sets a dangerous precedent and 
threatens our thriving U.S. copyright system. We are concerned that H.R. 1248 is sought, 
at least in part, to strengthen the artist's economic bargaining power vis-a-vis the studios 



121 



with "moral rights." To the extent this is true, the Act could threaten the constitutional 
goal of promoting the production and dissemination of copyrighted works and the 
traditional practices and relationships that are fundamental to the daily operation of 
copyright intensive industries in the U.S. 

If writers or directors are given 'moral rights," they could insist that their films be 
letter-boxed, rather than "panned and scanned." Letter-boxing is the technique used to 
present a film on a square TV screen by diminishing the size of the picture, leaving thick 
black lines across the top and bottom of the screen. Anyone who has ever spent any 
time in a video store can attest to the fact that, generally, the public finds letter-boxing a 
distracting interference with their enjoyment of the film. In addition, writers and directors 
could prevent conversion of films to videocassette in any format, claiming that both letter- 
boxing and panning and scanning adulterate the "artistic integrity" of their films. 

Writers and directors could also leverage their "moral rights" to increase 
compensation. The studios would pass on that increased cost of production to 
distributors and, in turn, to video retailers. We - the retailers - would have to absorb that 
increased cost (although our margin of profit is far smaller than those of screenwriters and 
directors) and pass it on to our customers. 

Finally, negotiations over "moral rights" could lead to very substantial delays in the 
release date of a videocassette. That is the most likely outcome for many films. Almost 



122 



five years passed before "E.T." was released on video because of such negotiations; not 
every film has the remarkable longevity of that picture. For most films, delay could 
significantly reduce the market demand because more recently publicized films tend to 
displace consumer interest in older ones. 

The gravity of these concerns is part of the reason the Committee for America's 
Copyright Community came together - to ensure the continued vitality of the American 
copyright system. The potential harms outlined above demonstrate that embarking the 
U.S. "moral rights" regime in the area of films, sets a dangerous precedent and threatens 
our currently thriving marketplace of copyrighted works. Proponents of this legislation 
have not demonstrated a compelling public interest to justify such a radical departure from 
traditional copyright law which has produced a flourishing creative industry. The 
remainder of my testimony will focus on the strength of our current system and the threat 
posed by proposals such as H.R. 1248. 

IV. AMERICA'S COPYRIGHT SYSTEM IS THRIVING. 

The existing system for distributing films through theatres, home videocassette, 
television and cable broadcasts has been an unparralled success in making these films 
widely accessible to the public. It is the envy of the world. This is also the case for the 
rest of America's copyright industries. 



123 



Copyright industries are one of the largest and fastest growing segments of the 
U.S. economy. They contribute more to the U.S. economy in terms of value added to 
Gross Domestic Product (GDP) than any single manufacturing sector and more than most 
industrial sectors. In 1993, they accounted for 3.7 percent ($238.6 billion) of U.S. GDP. 

The U.S. leads the worid in entertainment, news, business infonnation, books 
magazine publishing, sound recording, motion pictures, advertising, video and other film 
products, computer software packaging, and virtually all other areas of copyrighted works. 
Our country's global preeminence in copyright works is reflected in 1 992's foreign sales, 
which exceeded $39.5 billion, an increase of more than 9% from 1991. 

Here are some examples of America's preeminence in the copyrighted works 
arena: 

• American films dominate theatres and TV screens throughout the worid. In 1 992, 
U.S. films returned an estimated $4 billion in surplus balance of trade. 

• In 1993, woridwide revenues from ail media - theatrical, television, Pay-TV and 
home video - were $20.4 billion, up 7% (1.4 billion) from 1992. 

• The U.S. recording industry is one of the most influential, creative and visible 
industries in the worid. In 1993, U.S. record companies generated $10 billion in 
domestic sales, and worldwide record sales reached $30.5 billion. As a trade 
commodity, foreign sales of U.S. sound recordings accounted for an estimated 
$12.3 billion. 

• The U.S. is the worid's largest market for printed products and the second largest 
exporter of printed products, with 1993 shipments of more than $4 billion. . 



124 



V. THE MARKETPLACE AND CONTRACTUAL AGREEMENTS PROMOTE OUR 
THRIVING SYSTEM 



We believe the success of our copyright system is attributable, in large part, to the 
fact that our copyright law establishes an economic framework to encourage the creation 
and dissemination of new works. First, the Act gives creators the financial incentive to 
devote resources and energy to producing creative works. They know they will have the 
opportunity to secure financial compensation for the exclusive rights granted them under 
the Act. 

Second, the Copyright Act provides the predictability and certainty that business 
activities will be governed by the objective four comers of business agreements. Finally, 
the Act allows owners and users the commercial flexibility to devise and implement their 
own business relationships to make works available to the public. This flexibility has 
allowed copyrighted works to be made available to the public through a wide range of new 
media and delivery systems. 

H.R. 1248, with its burdensome labeling and notification requirements, runs counter 
to the long-standing practice in the U.S. that business relations should be governed by the 
marketplace - a system under which the copyrighted works industries have thrived. 

In addition to the voluntary film labels, directors, screenwnters and 
cinematographers routinely negotiate contractual terms regarding the work to be 



125 



performed, including compensation and residuals. Similarly, adaptations made to a film 
following its initial release are clearly an appropriate subject for negotiation. Through 
avenues of both collective and individual bargaining, directors, screenwriters and 
cinematographers are able to effectively bargain on these issues. 

The collective bargaining agreement provides a bundle of rights to every director, 
regardless of his track record or whether the film he makes is a success. These 
agreements also give every director the right to participate in the fiim-to-video adaptation. 
For example, in 1987 negotiations, the DGA and the Alliance of Motion Picture and 
Television included a contract provision requiring producer consultation with a director 
regarding adaptation techniques. 

Other copyright industries also rely on the marketplace and contractual 
agreements. H.R. 1248 is clearly a first step toward a moral rights regime which could 
stymie technological innovation, bring the disthbution of copyrighted works to a standstill 
and strike a devastating blow to the predictability and certainty that is critical to the 
copyright system. 



VI. ENACTMENT OF H.R. 1248 WOULD SET A TERRIBLE PRECEDENT WITH 
DEVASTATING IMPLICATIONS FOR THE US. COPYRIGHT COMMUNITY. 



A motion picture is a collaborative effort derived from the creative energy of 
multiple parties. Similarly, books, magazines, sound recordings, newspapers, databases 

10 



OQ_oe"y Qc c 



126 



publishing, software pacl<aging and advertisements are collaborative efforts in which 
numerous individuals contribute to a creative work. If H.R. 1248-type requirements were 
applied to the broad range of these copyrighted industries, a breakdown in the publishing 
and distribution of copyrighted works could occur. For example: 

• Would a newspaper be unable to submit its daily edition for edited electronic 
publication because it was unable to comply with labeling and notification of its 40 
reporters? 

• Would a magazine miss its printing deadline because it had not been able to notify 
a freelance photographer that last year's picture needed to be cropped for this 
week's story? 

• Would the publisher of a textbook be unable to meet a deadline to update a 
textbook to reflect new developments in science, because it could not reach 
agreement with the principal editor on the content of the label? 

• Would an advertiser be unable to adopt an ad for next month's publication because 
of burdensome requirements to notify an array of contributors to the ad, including 
writers, graphic artists, creative directors, photographers and others? 

• Would a recording company be unable to rearrange the order of an album's songs 

11 



127 



for a second release? 

Government-mandated labeling of films may strike some as a narrow exception to 
the American tradition of permitting the parties to make their arrangements and settle their 
disputes by contract. However, at its heart, this proposal seeks to undo the very system 
which carefully balances risk and reward and has made America the undisputed leader in 
the creative industries. 



VII. THE MARKETPLACE IS THE BEST BAROMETER OF CHANGES MADE TO A FILM 
POST-RELEASE. 



The marketplace responds to meet consumer needs regarding motion pictures. 
Consumers, are the best check on post-publication changes made to copyrighted works. 
Consumers find that technical adaptations of a movie - for the T.V. saeen and/or 
colorization - enhance their film enjoyment. To meet consumer demand, many movies 
today are available on videocassette in both original and made-for-T.V. form. Adaptation 
of films give consumers more choice. In fact, there has been no demonstration of 
consumer dissatisfaction with the changes that would be regulated under this bill. When 
consumers are dissatisfied, they will voice their displeasure and the market will respond 
without unnecessary government intrusion. 

One way the market responds is by giving consumers a choice. For example, a 
consumer can walk into a Blockbuster and rent either the colorized version of 

12 



128 

"Casablanca" or the original black and white version - whichever suits their taste. As you 
know, the motto of the home video industry has long been "freedom of choice for 
American consumers" - freedom to rent or purchase the films they wish to see, when they 
want to see them. 



VIII. H.R. 1248 RAISES SIGNIFICANT FIRST AMENDMENT QUESTIONS AND IS 
INCOMPATIBLE WITH THE U.S. LANHAM ACT 



The First Amendment and the Copyright Clause share the mutual goal of 
increasing the flow of information to the public. This important constitutional goal is 
thwarted by both the labeling and notification requirements in H.R. 1248. Even in the 
case of commercial speech, such as a videocassette box which advertises the film, the 
litmus test for the protection of commercial speech, laid out by the Supreme Court in 
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York , 
447 U.S. 55 (1980), is that the restrictions on speech must be the least intrusive to serve 
the governmental interest asserted. The requirements of H.R. 1248 are over- broad, 
unnecessary and likely to confuse consumers. 

This bill also masquerades as a consumer bill. In fact, it is nothing of the kind. 
Modified versions of films are already labeled under the voluntary program to ensure the 
consumer is not confused. H.R. 1248 provides that a third party can be designated by the 
artistic author to object to a film. Why should a film be labeled based on the opinion of a 
third party? Are they looking out for the consumer? 

13 



129 



Finally, Section 43(a) of the Lanham Act already provides remedies to ensure that 
consumers are not deceived. 

Not only does the Lanham Act exist to protect consumers from misrepresentation, it 
also provides remedies for individual artists whose reputation is injured as a result of 
misrepresentation. In the event a director, screenwriter, or cinematographer felt that edits 
had seriously altered his work, he or she could pursue relief under the Lanham Act. The 
landmark case on this subject is Gilliam v. ABC, Inc.. 538 F2d 14 (2nd Cir. 1976). In that 
case, the court found that an allegation by Monty Python's creator of a mutilation of his 
work - 24 minutes of a 90 minute Monty Python work were edited out by ABC - stated a 
cause of action under Sec. 43(a) of the Lanham Act, 15 U.S.C. 1 125(a). 

In a March 4, 1 992 letter, then Commerce Department General Counsel Wendell 
Wilkie recognized that the broad application of Section 43 has protected authors from 
misrepresentation.' It opposed the amendment of the Lanham Act to create additional rights 
for film artists.^ In a 1989 Patent and Trademark Office report to Congress, it found that 
Section 43 is functioning in the way that Congress intended, as a broad, unifonn law 
regulating unfair competition, and that amending the law to cover one specific industry was 



' March 4, 1992 Letter Of Commerce Department General Counsel, Wendell Wilkie to 
Honorable William Hughes, Chairman of the Subcommittee on Intellectual Property and Judicial 
Administration, regarding H.R. 3051 ("Film Disclosure Act of 1991"). 

'Id. 

14 



130 



inappropriate.' It also concluded that the legislation would frustrate the work for hire doctrine 
applicable to motion pictures under U.S. copyright law and film industry contractual practice. 

VIII. CONCLUSION 

Mr. Chainnan, VSDA and the Committee for America's Copyright Community oppose 
H.R. 1248. We submit that the current system works. It works because over the last two 
hundred years, it has encouraged the creation and dissemination of works which has made 
our copyright industry a national and world leader. It is a system that provides both flexibility 
and predictability, allowing parties to create contracts that adapt to meet new technologies. 
The industry-wide voluntary labeling program and the collective bargaining agreements are 
perfect examples. The marketplace, not Congress, should respond to the consumers. 

Congress should continue to let this marketplace operate under its thriving system. 
H.R. 1248 is not only a threat to our country's film industry, it is a threat to our entire 
copyright system. In order to protect consumers. Congress should continue to reject efforts 
to recognize moral rights across a broad range of copyrighted works. Starting down the road 
of moral rights will only bring the dissemination of copyrighted works to a grinding halt. 



' "Trademark Act of 1946 and Technologies for Alteration of Motion Pictures," 1989 
Patent and Trademark OflSce Report to the Subcommittee on Intellectual Property and Judicial 
Administration of the House of Judiciary Committee. 

15 



131 



COMMIHEE FOR AMERICA'S COPYRIGHT COMMUNITY 



1001 G Street, NW, Suite 900 East 

Washington, DC 20001 

202/393-1010 

Fax: 202/393-5510 



CACC Member List 

The American Fim Marketing Association 

Association of American Publishers 

Association of Independent Television Stations, Inc. 

Association of National Advertisers 

Magazine Publishers of America 

Meredith Corporation 

Motion Picture Association of America, Inc. 

National Association of Broadcasters 

The Reader's Digest Association 

Recording Industry of America, Inc. 

Time Warner, Inc. 

Times Mirror Co. 

Turner Broadcasting 

Viacom International 

Video Software Dealers Association 



132 

Mr. MOORHEAD. Mr. Weller. 

STATEMENT OF MICHAEL WELLER, PLAYWRITE, SCREEN- 
WRITER, AND MEMBER, WRITERS GUILD OF AMERICA, EAST 

Mr. Weller. I have got my remarks beginning with good morn- 
ing, Mr. Chairman — I think it is afternoon now 

Mr. MoORHEAD. Not quite. 

Mr. Weller [continuing]. Members of the subcommittee, and 
thank you for sponsoring this hearing on legislation which, in my 
view, cuts to the heart of our system. That may sound like pretty 
big talk, but in my few minutes here I hope to suggest a reason 
why it isn't. 

I am not Harrison Ford. I am not Sylvester Stallone. I am not 
even Tom Cruise, alas. What I am is one of the legion of folks who 
gives them things to say and stories to act in. My name is Michael 
Weller. 

I am a writer, and I wear two hats. Wearing one, I write movie 
scripts; and I do this under the protection of the Writers Guild of 
America East. With the other hat, I write plays for the stage. This 
work is protected by the Dramatists Guild of America, on whose 
governing board I serve. 

I have had luck wearing both hats. My plays have won awards 
and have been performed all over, here and abroad — most fre- 
quently, "Moonchildren," "Loose Ends," "Fishing," "Spoils of War." 
And several films I have worked on are held in high esteem — 
"Hair" and "Ragtime" in particular. I even won an Academy Award 
nomination. In other words, as writers go, I am a happy camper 
and a very lucky one. 

The term writer has become so commonplace and the word artist 
so carelessly flung about in recent years, it might be worth a few 
seconds of your time for me to describe what I actually do. 

I am a craftsperson, an artisan, a fabricator. I make things. Ex- 
actly the way a leather worker makes belts or a furniture maker 
makes a chair, I make stories. Instead of leather or wood, my me- 
dium is words. I shape them, cut them, polish and trim until I have 
made a story that feels interesting, durable and true. 

We are here today to discuss the fate of what I make. I will ad- 
dress my main remarks to H.R. 989, the Copyright Term Extension 
Act, but I would also like to state my position and the position of 
the Writers Guild of America East on H.R. 1734 and H.R. 1248, the 
Film Preservation and the Film Disclosure Act. 

I support any effort to protect my work and my colleagues' work 
from mutilation by future owners and exploiters. 

I mentioned that I have written the screenplay of a film called 
"Hair." Let me relate briefly how the film came about. 

It was because of the passion of one man, the director Milos 
Forman, a Czech. While living under a Communist regime, he vis- 
ited New York. He was young, adventurous and penniless and 
ended up sleeping for several nights in Central Park where he was 
befriended by a bunch of people called hippies. The anarchy of 
those few nights, the joy, the friendship, effected him profoundly. 

When he made the film "Hair" years later, it was his way of cele- 
brating the spirit of freedom he felt that night, of sending a mes- 
sage home to his fellow countrymen still living behind the Iron 



133 

Curtain, a message that in a free society joy and trust are possible, 
unlike the despair and paranoia that haunt a country under totali- 
tarian rule. 

It came from his heart, this film, and it was intended in a small 
way to weaken the hold of an oppressive regime over the minds of 
people thirsty for freedom. 

The original film had 22 songs. When it was shown on television, 
only 11 survived. The other 11 were cut. You might say that what 
the audience saw was half "Hair," a celebration of half freedom. 

And yet it was called "Hair," the screenplay was credited to me 
and the direction to Milos Forman. The most fundamental inten- 
tion of the film was violated. The spirit it was made to celebrate, 
the energy embodied in its songs, virtually everything it stood for 
was violated on television. 

I am aware that an argument can be made that it is entirely 
within the rights of purchasers to do what they please with the 
work they buy. Just as it is arguably within the rights of million- 
aire X, who owns a Rembrandt that won't fit the wall where he 
wants it hung, to cut 6 inches from the top and a foot from the 
side. In fact, he can cut it in half and hang it in two separate 
rooms if he pleases. But does he now own two Rembrandts? No, 
what he owns is a Rembrandt, mutilated, altered, and destroyed. 

The law may support his right, as an owner, to do this, but 
should it support his right to advertise it subsequently as the work 
of artist Y or Z? I would argue no. 

Simple logic tells us that an artist should be allowed to protect 
himself from such abuse. If inches are lopped off his work, give him 
a chance to warn the public that what they are seeing is no longer 
his. Let viewers know, especially discerning viewers who might be 
in a position to employ him now or at some future date, that what 
they saw doesn't represent his abilities. It may even, in some cases, 
harm his reputation. 

As regards preservation of our firm heritage, a nation is es- 
teemed and remembered mainly by the stories it tells about itself. 
America's undeniable contribution to storytelling is film, and films 
deteriorate. With them a cherished record of our heritage vanishes. 
The Government can help prevent this and for, relatively speaking, 
a pittance. 

We would not allow the Lincoln Memorial to crumble. We provide 
a budget to ensure that Lincoln's memory is honored in the form 
of maintenance. I encourage you to throw a few dollars to the 
maintenance of another great heritage of ours, film. 

Now to my main area of concern, copyright. You have heard tes- 
timony describing the hard arguments which are economic. We are 
basically hemorrhaging money for 20 years to Europe. I would like 
to talk about the testimony to the effect that the artist's work is 
his heritage, his legacy, the means by which he hopes to provide 
for his children and his children's children. 

Even in writing film, for which I hold no copyright, I count on 
the duration of the film owner's copyright, which ensures that I am 
compensated for future exploitation of my work on television, video- 
cassettes and possible merchandising or publication, the use of film 
clips and so on. The duration of these rights is my main concern 
today. 



134 

I have two young sons, 8 and 6. They seem proud of the work 
I do. One even shows signs of being a bit of a storyteller himself — 
on occasion, quite a big storyteller. 

If either of them should choose to launch his little boat on the 
same dangerous waters as dad, I would like him to expect that at 
the end of a lifetime of hard work in the arts he could anticipate 
a certain degree of respect for his accomplishments and that this 
respect would be reflected in the law. 

But, at the moment, I am compelled to explain things as follows: 
I make stories for a living. If I made a chair or a shoulder bag or 
a pot, it would belong to me for as long as I lived or until I chose 
to sell it. It would be mine to give to my children, and this would 
become theirs to give to their children and so on. 

Instead, I make stories; and they can only belong to my family 
until 50 years after my death. When my older son, who is very 
smart and curious, asks me why my stories can be taken away 
after 50 years I say it is the law. 

When he asks why can laws allow things to be taken from peo- 
ple, I try to explain what laws are, how they come about and why 
we are lucky to live under a system that provides so many ways 
to alter and improve them, ways such as the hearing we are in- 
volved in today. 

But his eyes glaze over at these explanations. He is too young 
to understand and the logic is too complicated and, finally, irrele- 
vant to the essential issue which is property, be it intellectual or 
physical. As I said earlier, H.R. 989 is about something at the very 
heart of our system. It is about property. 

Imagine for a moment how it would feel if your grandmother had 
left you an exquisite quilt of her own making and after a certain 
time government officials appeared at your door and said this quilt 
has been in your family long enough, now it belongs to the world. 
Yet that is exactly what happens to the things I make during my 
life. 

H.R. 989 is about one thing: property. It is about how soon after 
people like me have made what we make can the Government, by 
law, allow it to be taken from us. At the moment, they must wait 
only 50 years. It is a small thing to ask that we be allowed to keep 
it in the family for another 20. It is a modest request. I urge you 
to grant it. 

Thank you for this opportunity, and I hope your efforts will re- 
sult in a change of law that I can hold up to my sons as an exam- 
ple of why our system and the extraordinary vigor of the arts it 
generates are the envy of the world. 

[The prepared statement of Mr. Weller follows:] 



135 

Prepared Statement of Michael Weller, Playwright, Screenwriter, and 
Member, Writers Guild of America, East 

Good Morning Chairman Moorhead, Members of the Subcommittee, and 
thank you sponsoring this hearing on legislation which, in my view, cuts to the 
heart of our system. That may sound like pretty big talk, but in my few 
minutes here I hope to suggest a reason why it isn't. 

I am not Harrison Ford. I am not Sylvester Stallone. 1 £im not even Tom 
Cniise, alas. What I am is one of the legion of folks who gives them things to 
say and stories to act in. My name is Michael Weller. 

I am a writer with two hats. Wearing one, I write movie scripts. I do this 
under the protection of the Writers Guild of America, East. With the other hat, 
I write plays for the stage. This work is protected by the Dramatists Guild of 
America, on whose governing board I serve. 

IVe had luck wearing both hats. My plays have won awards, and have 
been performed all over, here and abroad—most frequently "Moonchildren," 
"Loose Ends," "Fishing" and "Spoils of War." Several films IVe worked on are 
held in high esteem~"Hair" and "Ragtime" in particular. IVe even won an 



136 



Academy Award nomination. In other words, as writers go, I'm a happy 
camper. 

The term writer has become so commonplace and the word artist so 
carelessly flung about in recent years, it might be worth a few seconds of your 
time for me to describe what I actually do. 

I'm a craftsperson, an artisan, a fabricator. I make things. Exactly the 
way a leather-worker makes belts or a furniture maker makes a chair, I make 
stories. Instead of leather or wood, my medium is words. I shape them, cut 
them, polish and trim, until IVe made a story that feels interesting, durable 
and true. 

, We are here today to discuss the fate of what I make. I will address my 
main remarks to H.R. 989 - Copyright Term Extension Act of 1995. But I 
would also like to state my position and the position of Writers Guild of 
America, East on H.R. 1734 - National Film Preservation Act of 1995 and H.R. 
1248 - Film Disclosure Act of 1995. 

I support any effort to protect my work from mutilation by future owners 
and exploiters. 1 mentioned that I had written the screenplay of a film called 
"Hair." 

Let me relate briefly how the film came about. It was because of the 
passion of one man, the director Milos Forman, a Czech. While living vmder a 
Communist regime, he visited New York. He was young, adventiirous and 
penniless, and ended up sleeping for several nights in Central Park, where he 
was befriended by a bunch of people called hippies. The anarchy of those few 
nights, the joy, the friendship, effected him profoundly. 



137 



When he made the film "Hair" years later, it was his way of celebrating 
the spirit of freedom he felt that night, of sending a message home to his fellow 
countrymen still living behind the Iron Curtain, a message that in a free society 
joy and trust are possible, unlike the despair and paranoia that haunt a 
country under totalitarian rule. 

It came from his heart, this film, and it was intended in its small way, to 
weaken the hold of an oppressive regime over the minds of people thirsty for 
freedom. 

The original film had twenty-two songs. When it was shown on 
television, only eleven survived. The other eleven were cut. You might say that 
what the audience saw was "Half-Hair." A celebration of half-freedom. 

And yet it was called "Hair," the screenplay was credited to me, and the 
direction to Milos Forman. The most fundamental intention of the film was 
violated, the spirit it was made to celebrate, the energy embodied in its songs— 
virtually everjrthing it stood for—was violated on television. 

I'm aware an argument can be made that it is entirely within the rights of 
purchasers to do what they please with the work they buy. Just as it is 
arguably within the rights of millionaire X who owns a Rembrandt that won't fit 
the wall where he wants it hung, to cut six inches firom the top and a foot from 
the side. In fact he can cut it in half to hang in two separate rooms, if it 
pleases him. But does he now oviTi two Rembrandts? No. What he owns is a 
rembrandt, mutilated, altered and destroyed. 



138 



The law may support his right, as an owner, to do this, but should it 
support his right to advertise it subsequently as the work of artist Y or Z? I 
would argue "No." 

Simple logic tells that an artist should be allowed to protect himself from 
such abuse. If inches are lopped off his work, give him a chance to warn the 
public that what they are seeing is no longer his. Let viewers know, especially 
discerning viewers who might be in a position to employ him now, or at some 
future date, that what they saw does not represent his abilities. It may even, in 
some cases, harm his reputation. 

As regards preservation of our film heritage: a nation is esteemed and 
remembered mainly by the stories it tells about itself. America's undeniable 
contribution to storytelling is film, and films deteriorate. With them, a 
cherished record of our heritage vanishes. The government can help prevent 
this and— for relatively speaking—a pittance. We would not allow the Lincoln 
Memorial to crumble. We provide a budget to insure that Lincoln's memory is 
honored in the form of maintenance. I encourage you to throw a few dollars to 
the maintenance of another great heritage of ours, film. 

Now to my msdn area of concern today— copyright. You will have heard 
testimony describing the ineqmty of our current copyright protection of fifty 
years after an artist's death vs. that of the common market countries of 
Europe, which lasts for seventy years. You've heard that our current laws 
amount to a twenty year gift to the Eiiropean Union, since that's how long they 
can use our artists' works for free, while we have to pay for the use of theirs. 
We are basically hemorrhaging money, and for nothing in return. 



139 



You have heard testimony to the effect that an artist's work is his legacy, 
the means by which he hopes to provide for his children, and his children's 
children. Even in writing film, for which 1 hold no copyright, I count on the 
duration of the film owners' copyright which ensures that I am compensated 
for future exploitation of my work on television, videocassettes, £ind possible 
merchandising or publication, the use of film clips and so on. The duration of 
these rights is my main concern today. 

I have two young sons, eight and six. They seem proud of the work 1 do. 
One even shows signs of being a bit of a storyteller himself. On occasion quite 
a big storyteller. 

If either of them should chose to launch his little boat on the same 
dangerous waters as Dad, I'd like him to expect that at the end of a lifetime of 
hard work in the arts, he could anticipate a certain degree of respect for his 
accomplishments and that this respect would be reflected in the law. 

But at the moment, I'm compelled to explain things as follows. I make 
stories for a living. If I made a chair, or a shoulder bag, or a pot, it would 
belong to me for as long as I lived, or until I chose to sell it. It would be mine 
to give to them, and then it would become theirs to give to their children, and 
so on. 

Instead, I make stories, and they can only belong to my family until fifty 
years after my death. When my older son—who is very smart and curious— 
asks me why my stories can be taken away after fifty years, I say "It's the law." 

When he asks why can laws take things away from people, I try to 
explain what laws are, how they come about, and why we're lucky to live under 



140 



a system that provides so many ways to alter and improve them— ways such as 
the hearing we are involved in today. 

But his eyes glaze over at these explanations. He is too young to 
understand, and the logic too complicated, and finally irrelevant to the 
essential issue, which is property, be it intellectual or physical—as 1 said 
earlier, H.R. 989 is about something at the very heart of our system... 

Property. Imagine for a moment how it would feel if your grandmother 
had left you an exquisite quilt of her own miaking, and after a certain time 
government officials appeared at your door and said. This qviilt has been in 
your family long enough, now it belongs to the world!?" 

Yet that's exactly what happens to the things I make during my life. H.R. 
989 is about one thing— property. It's about how soon after people like me have 
made what we make, can the government, by law, take it away from us. At the 
moment, they must wait only fifty years. It is a small thing to ask that we be 
allowed to keep it in the family for another twenty. It is a modest request. I 
urge you to grant it. 

Thank you for this opportunity... and I hope yovir efforts will result in a 
change of law that I can hold up to my sons as an example of why our system 
and the extraordinary vigor of the arts it generates, are the envy of the world. 



141 

Mr. MooRHEAD. Ms. Saffer. 

STATEMENT OF JXJDITH M. SAFFER, ASSISTANT GENERAL 
COUNSEL, BROADCAST MUSIC, INC. 

Ms. Saffer. Good morning Chairman Moorhead and other Mem- 
bers of the subcommittee. My name is Judith Saffer. I am the as- 
sistant general counsel of Broadcast Music, Inc., referred to as 
BMI, and also the president-elect of the Copyright Society of the 
U.S.A. 

I am here this morning to speak on behalf of the composers, 
songwriters, and publishers of BMI who are members of the copy- 
right coalition. I wish to express their support for copyright term 
extension. I am also authorized to advise the committee that an- 
other group with which I am associated, the American Intellectual 
Property Lawyers Association, 9,000-plus lawyers in the intellec- 
tual property field, have also passed a resolution in support of 
copyright term extension. 

I am undoubtedly the shortest witness who has testified this 
morning; so I, therefore, think it behooves me to have the briefest 
comments. In view of the fact that we are short of time, I don't 
want to repeat the statements that have been made by other wit- 
nesses in support of the copyright term extension. I don't believe 
that it would benefit anybody to hear me try to articulate the rea- 
sons why the bill should be enacted when others have spoken so 
well before me. 

It is, in fact, because I sat here listening to those other speakers 
that I am reminded of exactly why we are here arguing for copy- 
right term extension. I listened to Mrs. Bergman speak so 
articulately, and I was again reminded when I listened to Mr. 
Weller, just a moment ago, that we have right here, right now, per- 
fect examples of why copyright term extension should be enacted. 

It is not simply the points that these individuals made, but it is 
the way that they expressed them. People such as myself, lawyers, 
can make the points, perhaps with all the right words, but not with 
the eloquent words that are really persuasive. It is these individ- 
uals, the creators, who should be entitled to the protection that this 
bill seeks to grant for them. And it seems particularly appropriate 
that they should get the same kind of protection that the writers 
and creators of works in Europe receive. I can see no reason why 
they should be second-class citizens. 

One of the things that came up during the course of the question- 
ing of the first panel was why the rights of people like Mrs. 
Bergman and Mr. Weller should be granted additional protection 
versus the claims of entrepreneurs who wish to benefit from their 
creativity. And I guess the response that I have to that is that, in 
balance, if somebody is going to reap the rewards of their creative 
product, shouldn't it be them and their families? Shouldn't it be 
them and their children and, yes, even their grandchildren if they 
are fortunate to have them? 

There is no indication to me as a consumer — and I am sure to 
most of you as consumers — that the American public really benefits 
more from the exploitation of a work once it goes into the public 
domain. When I bought my ticket to see "Phantom of the Opera" 
I didn't pay any less money for that than I paid for a ticket for 



142 

"Miss Saigon" just because one was based on a story that was in 
the public domain. 

In fact, I think pragmatism tells us that the converse is true. The 
entertainment industry, which is the industry from which I come 
and can therefore speak on behalf of, is much more likely to exploit 
a work that is protected by copyright, given the extremely high 
costs of production, distribution, advertising, et cetera. 

One of the points that was made by Congressman Conyers in his 
introduction really struck home to me this morning. He talked 
about being in China and the role that the United States has 
played in trying to get other countries to protect intellectual prop- 
erty. How can we go to other countries and ask them to grant 
strong copyright protection if we are not going to do it right here 
at home? 

And having promised to be brief, I am going to conclude with just 
one statement. I think it behooves us to remember that creators 
and copyright owners will not be the only beneficiaries of copyright 
term extensions. All Americans will be winners in jobs, in trade, 
in the balance of payments flowing into the United States from in- 
tellectual property. 

Thank you. 

Mr. MOORHEAD. Thank you very much. 

[The prepared statement of Ms. Saffer follows:] 

Prepared Statement of Judith M. Saffer, Assistant General Counsel, 
Broadcast Music, Inc. 

Legislation has been introduced in both the House and the Senate whose purpose 
is to extend the term of copyright in the United States by providing for an addi- 
tional twenty-year term of protection for copyrighted works. The primary provision 
would extend the term of copyright to life of the author plus 70 years. The proposed 
legislation is based on the belief that if works copjnighted in the United States are 
to be properly protected internationally, our term of copyright must coincide with 
the term of copyright being granted in the European Community ("EC") and many 
other countries. 

It isn't necessary to outline in detail the many reasons why the current term of 
copyright is inadequate. I respectfully refer the Committee to the excellent com- 
ments submitted by the Coalition of Creators and Copjrright Owners to the Copy- 
right Office in 1993, and to the statements presented by the witnesses speaking for 
the Cop)rright Coalition at today's hearing. 

On behalf of the composers, songwriters and music publishers represented by 
BMI, I would like to stress that extending the term of copyright will help further 
the general purpose of the copyright law — to encourage creativity and protect the 
rights of authors. In the general revision of the Copyright Act of 1976, there was 
a recognition that copyrighted works should receive protection for the life of the au- 
thor plus an additional 50 years. At that time. Congress recognized that the prevail- 
ing international standard of protection should be adopted by the United States, be- 
cause it was believed that this extended protection would help foster creativity, 
which ultimately enures to the benefit of everyone, not just the author. 

In addition, there is no doubt that there are significant economic benefits to be 
obtained by extending the term of copjTight. We are all aware that demand for 
United States' copyrighted materials transcends political boundaries and that all 
kinds of American intellectual property such as music are exceedingly popular 
throughout the world. Foreign pa3Tnents for works of American authorship far ex- 
ceed American payments for works of foreign authors. Many estimate that United 
States' copyrighted related industries account for more than 5% of the gross na- 
tional product and return a trade surplus of billions of dollars. However, a signifi- 
cant amount of this revenue could be put in jeopardy because of the principal re- 
ferred to as "the rule of the shorter term", which provides that if the duration of 
protection in a foreign state is shorter than a member state, that member state may 
limit the protection it gives to works of the foreign state's nationals, to the latter's 
shorter copyright term. Accordingly, countries could protect works of United States' 



143 

citizens only for the United States' shorter term of life plus 50 years, while protect- 
ing their own works for life plus 70 years. This might result in depriving United 
States' authors of 20 years of protection in the international market, eliminating an 
important source of revenue. 

Finally, the most frequently used argiunent against the United States in trade ne- 
gotiations is that we are not in a position to chastise other countries for low levels 
of copyright protection when our own law does not provide the high level of protec- 
tion in copyright laws of many western countries, particularly those in the EC. In 
1976, various arguments were put forth for extending the term of copjright, includ- 
ing the need to bring U.S. law in line with the laws of similar countries. It was also 
though that extending the term of copyright would allow the United States to be 
a leader in international copyright, would discourage retaliatory legislation, and 
would facilitate international trade. Twenty years later, these points are even more 
valid. 

Mr. MOORHEAD. Because we have certainly limited time, I am 
going to ask our members to be very brief in their questioning and 
certainly no more than 5 minutes, and that will be enforced. 

One thing that I wanted to ask, we have a voluntary film label- 
ing program that is working to some extent. The film label in the 
bill doesn't seem to be satisfactory to many of the others because 
it is too long. If we would bring representatives of the motion pic- 
ture association and the various groups that are represented here 
that are concerned with it together in a hearing room in Washing- 
ton and let you start the negotiations and see that it is carried out, 
is it at all possible you could come to terms? 

You are both making money from the same thing, the sale of the 
same films, everything else. Is it possible to come to any kind of 
an agreement on this without having legislation passed that en- 
forces it? We can put it into legislation if you can come to an agree- 
ment. But is it possible for you to come to agreement? Any com- 
ments on that? 

Ms. COOLIDGE. We tried. We did. And we couldn't get an5rwhere. 

Mr. MoORHEAD. Over how long and under what circumstances? 

Ms. COOLIDGE. There were several meetings. I was in contact 
with our representatives, but I was not involved in the meetings 
themselves. But I know that they were very frustrating. And, also, 
they did not represent everyone involved. In other words, the art- 
ists were represented, but all the producers and distributors were 
not 100 percent represented. 

Mr. MoORHEAD. Would you give us a list of those people who you 
think should be involved? 

Ms. COOLIDGE. Boy, would that be a big list. That is sort of the 
point I tried to make. One of the points that I tried to make is that 
this goes on and on and on. It is a giant pyramid of people that 
it affects. 

And, second, the producers claimed that they could deliver cer- 
tain people and they didn't. 

And, third, we do not represent the nonunion artists who are 
working in this country. There are a large number of film artists 
who do not, for whatever reason, either the size or scale of their 
work, are not members of the unions; and we cannot represent 
them. 

So it is a very large issue, to say nothing of the fact that in the 
end the entire concept, as you can see by our testimony here today 
of what the label should be, is kind of night and day. 



144 

Mr. Eves. Mr. Chairman, the view the coaHtion takes and the 
view our organization takes, is that there is a vast difference be- 
tween a Government-mandated label and a voluntary label. I think 
it would be difficult to point to very many programs that exist 
today that have achieved a 90-percent compliance rate, as has this 
labeling program in barely 20 months that it has been in existence. 

Directly to your question, I think that there clearly has been a 
responsiveness on the part of the motion picture industry to the 
concerns that have been raised here, and this is why a labeling 
program was developed. 

Now, people will quarrel over the precise language, but certainly 
we are willing, and I know the MPAA is willing, to sit down and 
continue discussions to see if we can come to some agreement on 
that; and we are very willing to do it. 

We certainly do not want to see a disparaging label that is harm- 
ful for our business and would seem to be designed to tell people 
that the product that they are buying is an inferior kind of product, 
and we have concerns about that. 

One of the points that was made in the testimony a few minutes 
ago was that the labeling program that we have in existence right 
now has not created any economic hardship on the industry. I 
agree completely with that point; but that is because it is a clear, 
unambiguous, informative label without taking an arbitrary or a 
disparaging kind of position with regard to the film. 

As to your question, we are certainly willing to do that. 

Mr. MOORHEAD. That voluntary label, if it were mandatory, is 
that something that would be satisfactory to you? 

Ms. COOLIDGE. No. Because although he may say it is unambig- 
uous, we disagree. I don't think it is clear. It is not a clear label, 
and it is not unambiguous. For example, what does edited for con- 
tent imply? If what it implies is true, meaning that it has sex and 
violence removed, that is actually not even involved in this bill. 
That editing is something that we do as part of our contract when 
we deliver a film made for motion pictures to a television screen. 
So that isn't even a part of it. 

Second, formatted for your television screen. That sounds like the 
companies are doing the consumer a favor rather than removing 50 
percent of the image from the picture. So we do have a very dif- 
ferent opinion about how does the cinematographer or director feel 
about having 50 percent of the image removed from the picture. 

Mr. MoORHEAD. Would you be willing to sit down one more time 
and see if some linguists among the group can come up with some- 
thing that could be agreed to by everybody? 

Ms. COOLIDGE. Well, I have to tell you, Mr. Chairman, that we 
have been — this request has been made to us several times; and we 
did sit down one more time and one more time and one more time 
again. So I don't know how to further answer you. 

Well — I mean, the problem is we know what the problems are. 
We know that the producers, when we sit down and discuss to- 
gether, will not consider the idea of the creative authors having an 
objection. We know that. There doesn't seem to be any way around 
it. And the authors, on the other hand, are extremely emphatic in 
their concern for having the opportunity to make this objection. 



145 

I would like to point out, though, something that I think is obvi- 
ous, and I hate to say the obvious. This example of a worst possible 
scenario label is almost laughable. Who would put a product out 
with this gigantic label on it? Most films would hardly have any 
label on them at all. Most films, particularly that go into the video 
market on a videocassette, are not altered. The most common alter- 
ation that is done would be panning and scanning. That would be 
the only common label, and you don't know if it would have an ob- 
jection. It might not. It depends on the author. 

But a situation in which a film has had, let's say, 20 minutes 
taken out plus they have lexiconned it, which is almost ridiculous, 
why would you speed up the film if you are cutting out a huge 
amount of it? Say you lexicon it to speed it up plus you cut out 20 
minutes plus you colorize it. The idea of doing that many alter- 
ations on it — I have to say that I would argue with you that maybe 
such a radically altered version is an inferior product and maybe 
it ought to have a label so that the purchaser of this film would 
know that their favorite scene in that movie may not be there. 

But, anyway, most films out there today with this voluntary la- 
beling situation are not labeled. First of all, syndicated films do not 
have labels. Releases prior to 1993 do not have labels. There are 
tens of thousands of movies out there that are not labeled under 
this voluntary labeling system, which we consider to be inadequate 
because it doesn't reach all the distributors and it is an inadequate 
label. 

Mr. MooRHEAD. Thank you. 

Mr. Conyers. 

Mr. Conyers. Thank you, Mr. Chairman. 

I don't know who was supposed to enforce the time against the 
chairman. It is not important, because we are all here because of 
the compelling, important nature of this subject. 

Let me just throw out a few questions. Throw back a few re- 
sponses. Write to me. This matter will not be ultimately disposed 
of today. And I loved Mr. Weller's testimony. I think most people 
appreciated it. But why don't you tell your son about the Constitu- 
tion? It isn't just laws that we flip around. The Constitution, article 
one, says that we shall limit it. 

And that is where we get to Brother Bono. If you are saying you 
want a constitutional amendment, great. Somebody — I am sure 
there are people around that will want to do that. 

What I would like to do is to find out — we know what kind of 
labels we don't want. I would like to see the kind of label we do 
want in this subject matter. And I don't think it is accurate to say 
that this is a solution in search of a problem. 

You have been negotiating, Mr. Eves. You couldn't have been ne- 
gotiating about a nonproblem. This is not only a problem, it is a 
big problem. And I approach this with great interest and concern. 
I am not sure why we do need two labels instead of one. 

I think it is important to consider the fact that this moral rights 
discussion deriving from French law is very important. I think — I 
don't think we need to adopt it in its whole entirety, but I don't 
think that it is subject to being dismissed out of hand. I mean, they 
have parliamentarians and people who know legal theory just as 
we do, and I am interested in pursuing it some more. 



146 

Another question that occurs to me is, doesn't the Lanham Act 
protect creators against excessive edits without proper labeling? 
And it seems to me that many viewers, unfortunately, ignore all la- 
bels. I am not real optimistic about labels doing much; but in the 
appropriateness of this subject matter it seems to me that at least 
a prima facie case has been made on the part of the writers that 
there ought to be a little bit more to this than volunteerism. 

And I close with my observation about letting people voluntarily 
correct things never works unless there is a huge pressure behind 
saying, "If you don't do it right, brother, we are going to do it for 
you." My experience has led me not to leave automobile corpora- 
tions to voluntarily do anything or anybody else. 

And so, starting with you, Ms. Coolidge, would you make any re- 
sponses you might make to these number of questions and observa- 
tions that I have? And then I would like to invite Mr. Weller and 
Ms. Saffer to do the same. 

Ms. Coolidge. Well, I don't know if this is a direct response or 
an indirect response, but I do agree with you. I think that our con- 
tinued efforts to discuss this over the past few years — and the more 
deeply we look into this problem — I think that the simplest pos- 
sible solution and the most truthful solution for the public is to 
have specific factual labels, including an objection, on these pic- 
tures. 

So the question I ask is, "how burdensome is the truth?" The 
more I hear my colleague over here argue that it is burdensome to 
put these very factual labels on the film, the more I wonder does 
that mean marketing implies lying about the material you are sell- 
ing? 

And this is something that there is some history about in mar- 
keting. The truth is, if they have a director's cut that they consider 
to be a new product, that label is put in very big letters across the 
top of the videocassette, and it is considered a positive element in 
selling the picture. 

Mr. Berman. What do you mean? 

Ms. Coolidge. You can re-release a movie, you know, with the 
director's cut. There are criterion and other companies who release 
laser discs and even in videocassettes where they are going back 
to director's cut and using that as a new product and marketing 
tool to promote it. 

I think that what the ultimate result of labeling, truthful label- 
ing and objections, will be is that the public and the artists will 
more value the original authentic version of whatever film it is that 
they are buying. 

Mr. CONYERS. Thank you. 

Mr. Weller, any comments? 

Mr. Weller. My response is essentially emotional. What we 
make is who we are, and it is important to us that it be seen the 
way we intend it to be seen. When an outside person intervenes in 
that process, it is insulting and it is upsetting. Obviously, it is a 
very emotional issue. 

And when Mr. Moorhead said that we have to try to get together 
and work this out, I think that attempts are so heated when this 
process begins that, finally, alas, it may be necessary for legislation 
to encourage certain compliance here. I think the issues are just 



147 

too — ^the interests are just too disparate in both ends. That is my 
emotional sense of what is going on. 

Ms. Saffer. I am here as a lawyer, and I assume that means 
that I am not supposed to be emotional. I am just supposed to be 
logical. But I am always tempered by the fact that I am a human 
being, and so my comments, really, express both my logical and 
emotional reaction. 

You addressed a point Mr. Weller made about how he should ex- 
plain to his son about the fact that the duration of copyright is lim- 
ited. And perhaps 

Mr. Weller. That is next year, by the way. He is only 8. 

Mr. CONYERS. He is not ready for the Constitution. OK. 

Ms. Saffer. I am supposedly 

Mr. CoNfYERS. I hate to tell what you my son is asking me about, 
and he is only 4. Excuse me. 

Ms. Saffer. I have read the Constitution several times over my 
lifetime, and I think that the point here is that nobody is trying 
to change the Constitution. The Constitution provides for cop3n:ight 
protection for a limited time, but it doesn't say what that limited 
time should be. 

What we are attempting to do is to change the law so that the 
limited time will be one that makes sense in our lifetime, and in 
these circumstances, in order to provide the best benefits for the 
creators and for America as a whole. And as we see it now that 
is simply to give us parity with European counterparts, extend an- 
other 20 years, not change the Constitution. 

Mr. CONYERS. Thank you. 

Last but not least, Mr. Eves. 

Mr. Eves. Congressman, we are not objecting to a label for a la- 
bel's sake. I think the very willingness of the MPAA to try to start 
a voluntary program is indicative of our willingness to do that. 

We are admittedly very, very protective about this industry. We 
are certainly aware of a difference in the way the Americans and 
the Europeans have approached the moral rights issue. But in 
thinking about those differences, we are also terribly aware of how 
successftjl we have been in this country with the movie business. 
And the success that we have met with in this country causes us 
to ask ourselves the question: Why have we been so much more 
successful than those in other countries? 

Mr. Conyers. The implication is that you will be less successful 
with this labeling? Is that your point? 

Mr. Eves. That is very much a concern, sir, yes. 

Mr. Conyers. OK. 

Mr. Eves. We also think that many of the kinds of issues that 
we are talking about today ought to be issues that are discussed 
at the bargaining table. When people sit down and they talk about 
wages and terms of work and conditions and benefits and residuals 
and all of the factors that go into the agreement, this is the place 
and venue for artists' rights discussed to occur. If there is an argu- 
ment or disagreement later on, it should be resolved by the parties 
themselves and we should not ask Congress once again to step into 
it. 



148 

Certainly, from our point of view, we are very willing to sit down 
and continue the discussion; and I would certainly urge both sides 
to do so. 

Mr. CONYERS. Thank you so much. You are talking to the com- 
mittee who has jurisdiction over the baseball strike. And some- 
times have you got to go back in, unfortunately. 

Thank you, Mr. Chairman. You are very generous with your 
time. 

Mr. MOORHEAD. Mr. Bono. 

Mr. Bono. This is tough because it is a practical issue, and it is 
an emotional issue. I certainly understand the emotional portion of 
it. But you are getting down to philosophy here, and I think what 
you have to identify is what your philosophy is. 

Basically, what some of you are asking for is a mandate from 
Government. And I would think twice about asking the Govern- 
ment to mandate your industry in any form. Could it stop here or 
could it keep going? Can it go to a script? You are a writer. Where 
will that end? 

I think the second question I would like to ask Ms. Coolidge. 
What language would you like to have on a general basis? I mean, 
"This picture is ruined"? I don't know where you want to take it 
to. 

Ms, Coolidge. Well, outside of reading the label that was up on 
the screen, the language has been carefully thought through and 
it is listed in the bill and it is kind of a sort of a domino set. You 
can have just one tiny label; and the more things that are done to 
a movie, the stronger it gets. 

Mr. Bono. Is the idea to tell the public that the product is less 
than what it was? 

Ms. Coolidge. The idea is to tell the public that the product is 
changed. 

Mr. Bono. Changed? 

Ms. Coolidge. Changed from the original version. I really appre- 
ciate Mr. Conyer's question. Because the point is — the implication 
we keep hearing is we don't want this label because the label will 
damage the sale of the product. 

First of all — and I think the part of the label that we want, that 
our opponents find more damaging, is the objection. But the objec- 
tion is very important. If they feel that the objection is so damag- 
ing to the product, then obviously the audience should know that 
the people who made this piece of art feel that something is wrong. 
The logic is very simple. 

Mr. Bono. That it has been changed or altered? 

Ms. Coolidge. I am talking now specifically about the objection. 

The label starts with a change; and that change, by the way, can 
be positive. Let's say we are talking about something that could be 
sold as a director's cut. Let's say that the original version of a film 
that everybody decided on was 1 hour and 54 minutes long, and so 
it was a very popular film. And this has happened recently with 
"Blade Runner" and "Lawrence of Arabia." Then they go back to 
the original director's cut which may be 20 minutes longer. Let's 
ask the director to reassemble his first cut, put that together and 
market that as the original director's cut. 



149 

That film would include a label that says this film is not the 
original version that was released. It is 20 minutes longer. And 
there will be no objection on it. They promote it as the director's 
cut, and the artists approve of it, and there is more material. 

Mr. Bono. The question got a little complicated. Are you saying 
that there should be two versions available at a store, the cut ver- 
sion and the director's cut version? 

By the way, the director's cut is when a director makes a picture. 
It is his work of art or her work of art, and they cut the picture 
in the cutting room, and they finalize the picture. At that point, 
they turn it over to the studio. In some cases, the director pre- 
serves the right to keep that final cut. In other cases, whatever the 
contract is, the studio can then recut it if they want. 

You know, again, you were compensated for directing the picture. 
So you are going down to the basics of compensation, is what I am 
trying to tell you that you are starting to dig up. You are paid well. 

Ms. COOLIDGE. With due respect, you know, Michelangelo was 
compensated for painting the ceiling of the Sistine Chapel; but, on 
the other hand, I think he would be upset if it was changed. As 
you said, it is a difficult issue. 

Mr. Berman. They just restored it. 

Ms. COOLIDGE. I know, and I don't know how he would feel about 
it. We can't ask him. 

At any rate, the point is what we are talking about — we are not 
asking, demanding that there be two versions in the video store. 
Most of these suggestions become too complicated. All we are ask- 
ing for is that when a film is changed from its originally released 
version that it bear a truthful and specific label that tells the buyer 
exactly what was done. 

Mr. Bono. That is why I ask what the language was. 

Ms. COOLIDGE. It is in the bill. 

Mr. Bono. It is in the bill? 

Ms. COOLIDGE. The language is completely outlined in the bill in 
a simple, step-by-step manner as to exactly how to label. It's very 
simple, how many minutes have been removed. Then, if there is an 
objection, that is included; but if there isn't, that is not included. 
And then it goes on from there. 

The point is, Mr. Bono, that in the end maybe the video store — 
and I don't understand why this is burdensome to a video store 
even in the slightest — might want to include the original version on 
their sales shelf because the original version might have more 
value. 

Mr. Bono. They are taking the position we paid for this product. 
They paid you. They paid the scriptwriter. They may — everybody 
was paid. So, from that point of view, who is the owner? I think 
that you have to ascertain at some point who owns the product, be- 
cause it takes a collaboration of people to create the product, cor- 
rect? 

Mr. MOORHEAD. I think your time has expired. We have each 
taken 3 minutes more than was originally planned. 

Mr. Bono. I understand how you feel. It happened to me. And 
I produced a picture, and I had to sell it for 350 bucks, and they 
cut the picture to shreds. But I knew I had to sell the picture, so 
at that point I sold it. 



150 

Mr. CONYERS. You need protection. 

Mr. Bono. We need legislation. 

Mr. Berman. I am not sure of the philosophical distinction be- 
tween mandating the extension of the copyright term and the no- 
tion that it is inappropriate to mandate 

Mr. Bono. May I respond to that? 

Mr. Berman. Only if it is not on my time. 

Mr. Bono. One is paid for and one isn't. 

Mr. Berman. In other words, you are not talking about the song 
as a work for hire for a film. You are talking about an independent 
song. 

Mr. Bono. That is true. 

Mr. Berman. I think that is a fair distinction. 

Mr. Eves, I don't think you should continue to use the argument 
that we — we in the sense of whoever all is in the coalition — the stu- 
dios, the video dealers, the television stations, the networks — have 
out of the goodness of our heart and because it is a right thing to 
do come up with an appropriate label for these films. 

The fact is, you did it because there was legislation in over the 
last 5 or 6 years and it was in that context that those labels ap- 
peared. And so already the legislation has had some role. It has 
caused you to decide to come to an agreement on a label. 

To me, this is sort of a continuum. You start on the far end with 
should any of the creators be able to veto this, the noncopyright 
holder creators be able to veto this? Should they be able to object 
to it? Should it be accurately described? 

I can certainly see your concern about disparaging comments af- 
fecting the marketability of the product. And I know that were ne- 
gotiations. They came fairly close. I think the folks who have la- 
beled — the studios and the people who have labeled — have fallen 
short of where they were in the negotiation process; and the other 
side in this legislation is asking for more. I guess both of these are 
to be expected since no deal was worked out. 

But what is wrong — if 22 minutes of the film has been cut, say- 
ing this film is 22 minutes shorter or 22 minutes have been edited 
from the film originally released in the motion pictures? Which is, 
by the way, why you are renting it because you heard about it 
when it was released in the motion pictures. What is wrong with 
that? 

Mr. Eves. Mr. Berman 

Mr. Berman. Is that a disparaging comment? I guess that is my 
question. 

Mr. Eves. That statement made in isolation, by itself, no, sir, I 
don't think it is. 

Mr. Berman. So why haven't you gone — ^why haven't you 
agreed — that is a heck of a lot more communicative than "This film 
has been modified." 

Mr. Eves. What we are testifying today, sir, is the legislation 
that begins with a warning label that states this is not the original 
product and then it goes through the litany of all the people that 
object and the reasons they object. 

Mr. Berman. I understand you don't like the legislation, but in 
part of your argument you went to the trouble of bringing a tele- 
vision set that shows the labels that you are proud of that you have 



151 

done, quote, voluntarily, unquote. And I am saying what is wrong 
with including in your voluntary system, understanding your oppo- 
sition to the legislation, the amount of minutes that you have cut 
from a film? 

Mr. Eves. Sir, I think that, as we indicated, I know that the 
MPAA is certainly willing to sit down and to continue discussions. 
I recognize that there are legitimate differences of opinion over the 
precise language. 

Mr. Berman. To your way of thinking, that does not affect the 
marketability of your video dealer's inventory, an accurate descrip- 
tion of the amount of time that has been cut from the originally 
released film? Is that a fair conclusion? 

Mr. Eves. The average film today costs $50 million to produce. 

Mr. Herman. My question is, does an accurate description of the 
amount of time that has been cut from the originally released film 
negatively affect the marketability of your product in the video 
stores? 

Mr. Eves. I believe that one has to take a look at the entire label 
in its context. 

Mr. Berman. Nothing else for a second, hjrpothetically, except 
where the modification has been a shortening of the film, a cutting 
of the time of the film, adding or substituting for the modification 
the words, "18 minutes has been edited from this film as originally 
released." Would that negatively affect the marketability? 

Mr. Eves. This is going to be more of a television issue than a 
video store issue since it is rare to cut from a video cassette. There 
may be a marketability question as to the ability to show the film 
on free television in terms of whether it could fill the time slot. 

Mr. Berman. I was asking about video dealers at this point. 

Mr. Eves. No, as a matter of fact, with the video dealers gen- 
erally there is not a situation where there is anjd^hing cut. And, in 
many cases, there are more than one version of the film that is 
available, including the director's cut. And also some of the studios 
are making available the film without the pan and scan technique 
used. 

Mr. Berman. I am gathering you are saying it would not affect 
marketability in the video dealer context. 

Mr. Eves. It is not an issue primarily in the video context unless 
the language used on the label is disparaging to the product. 

Mr. Berman. What about a label that said, this film has been 
colorized? 

Mr. Eves. Again, in the video area, the label relating to 
colorization already appears in this way. 

Mr. Berman. Was "Angels in the Outfield" — was that originally 
in the color? I just saw it, and I didn't see a label that said it was 
colorized. 

Mr. Eves. It was made in a color version just in the last 2 or 
3 years. It is a remake. It is a relatively recent production. 

Mr. Berman. So, it is not a colorized version. I missed the new 
one. It came and left without me knowing about it. 

Mr. MOORHEAD. The gentleman's time has expired. 

Mr. Berman. Thank you. 

Mr. Becerra. Mr. Chairman. 

Mr. MoORHEAD. The gentleman from California, Mr. Becerra. 



152 

Mr. Becerra. Thank you. 

I think you can see that a lot of us are struggling with this issue, 
because I don't believe that legislation doing what either side 
would like would ever pass. I think it is too convoluted, too eso- 
teric. And it would be difficult to get 218 Members in the House 
and 60 Members in the Senate — that there is some good com- 
promise out of this. And I think it is unfortunate because I wish 
it would be resolved. 

Let me ask a question — I will try not to take too much of a side 
on this, but let me ask a question of the directors and the screen- 
writers and ask why not also include within the list of people who 
can raise an objection — actors or other artists who are involved in 
the film? 

Ms. COOLIDGE. Well, the short answer is twofold. One is that 
there is some precedent in Europe as to who are considered to be 
the authors of a motion picture. And they vary slightly from coun- 
try to country, but we have followed the most standard traditional 
approach. 

Second, through equally important — and I think that the state- 
ments from the Screen Actors Guild that I have submitted, you 
know, really prove that — is the traditional relationship of trust be- 
tween the people who work on a motion picture — the editors, the 
grips, the crew people, makeup, hair, actors — and the director. 
They sign on to do a movie with a director, and that director is 
making the final decisions as to whether or not that actor's per- 
formance is up to snuff or not and whether or not the development 
of the character is correct. 

And those actors have always had, and continue to have, a rela- 
tionship of trust which is a part of taking that job. 

So the entire process of making a film is to develop it and to fol- 
low it in terms of production, realizing one vision. It is very, very 
difficult to make a movie with more than one person saying what 
kind of a movie you are making. And that is why the director tradi- 
tionally has had the final decisions. 

Mr. Becerra. It's only natural, I would want to be there with the 
screenwriters and directors, but I would like to see the other artists 
involved. Because whether you bargained away your part as an 
actor to be a part of that decisionmaking process, I think the same 
comparison could be made between the directors and the producers. 
And coming from a union home, where I wish my father had more 
say as to his working conditions and the things that he produced, 
I wish there were a better way to try to get others involved. 

Ms. Coolidge. But here is the twofold problem or issue: One is, 
they haven't asked for it. That is very simple. They have supported 
this bill, and they have supported the bill as it stands, which is fur- 
ther proof that they trust that if a director's work is hurt the ac- 
tor's work is hurt. It is very simple. 

We also all know, and this has been a ploy of some of our oppo- 
nents, that if you put more and more and more people into the ob- 
jection portion of this bill it will be impossible — impossible to create 
anything realistic that would work. 

But there really is precedent for this in Europe, and we could 
further educate you about that. 

Mr. Becerra. Thank you for that. 



153 

Let me ask Mr. Eves a question. At what point do you reach that 
threshold where you, in fact, have to in some degree undermined 
the character or the artistic value of a film by cutting 20 minutes 
or by cutting out too much of the film because you have to fit it 
on a TV screen? 

At what point is it true that the work that is being displayed is 
no longer the work that has been promoted that is causing people 
to want to go view it? 

Mr. Eves. Congressman, I wouldn't honestly know how to pos- 
sibly answer that question, because I think in the eye of the person 
looking at it you will probably get a different version. 

There are certainly a lot of creative artists and directors who ob- 
ject to the panning and scanning of a film to fill up the television 
set. There are other people, customers of ours, who come into a 
video store when they see an original cut of a movie and return the 
tape telling them the tape must be defective because they had 
these big black bands on the top and the bottom of their picture. 

So it is an awful lot in the eye of the beholder, and I would not 
presume to know exactly at what point that happens. I guess that 
is going to be up to each individual to decide. 

Mr. Becerra. I think you just illustrated the problem for this 
particular issue. No one really knows what is sufficient or what is 
a sufficient compromise for us to go with. And if you all can't sit 
down, I don't think that you can expect us, who have less knowl- 
edge than you do about the industry and the product and the artis- 
tic value, to come up with something that anyone would be satis- 
fied with. 

I think it is unfortunate because I know that you all tried very 
hard a couple of years back, and I am in a quandary. 

Mr. CONYERS. Will the gentleman yield briefly? 

Mr. Becerra. I will just finish the statement. Of course, I will 
yield to the ranking member. 

I wish you all could find a way. I think there must be some mid- 
dle ground. I think that at some point the art has been disparaged 
or has been changed so much so that the artistic value or character 
has been altered; and the consumer, because of I think a truth in 
advertising or a customer's right to know, should understand that. 

But I also believe that it is difficult with the legislation in hand 
to define or give us the understanding of what an objection — what 
constitutes a proper objection on the part of a director. At what 
point does it reach the threshold where the director has the right 
to object because the character has been changed? And I think it 
becomes very difficult, and you are asking us to do something sub- 
jective which you all are having a difficult time doing yourselves. 

I yield to the ranking member. 

Mr. Co^fYERS. My admiration for my colleague from California 
leads me to know that frequently we make the decisions that ex- 
perts who have far more knowledge than us — that is why we hold 
hearings. 

Mr. Becerra. That is why Grovemment is so disparaged. 

Mr. Berman. That is why we wanted the job. 

Mr. CONYERS. The witnesses come to us as experts and, guess 
what, we make the decisions. That doesn't mean it is right, but 
that is why the hearing is held. 



154 

Mr. Becerra. Nor does it mean that the decision we make is the 
best one for the industry, but we will strap the industry to live 
with it. And I suspect at some point we will find one sector of the 
industry coming back and saying you did a darned awful job and 
try to fix it. 

Ultimately, we are going to get guidance, the expert assistance, 
from the industry; and it just helps us if we had more of a concrete 
answer from the industry as to where we would go so that we could 
focus on trying to define what we can do, if anything needs to be 
done at all. 

Mr. CONYERS. You are up to it. 

Mr. Becerra. Thank you, Mr. Chairman. And I thank all the 
panelists for being here. 

Mr. MOORHEAD. I want to thank all the panelists and all the peo- 
ple who have come and provided our audience today. And I want 
to thank the four other members of the panel that have come over 
here for this hearing. This has been a good hearing. I am sorry we 
kept you so long. But I think it has been important that we have 
gone over the subject and given it the time it deserves. 

Thank you. 

The subcommittee is adjourned. 

[Whereupon, at 12:46 p.m., the subcommittee adjourned.] 



COPYRIGHT TERM EXTENSION ACT OF 1995 



THURSDAY, JULY 13, 1995 

House of Representatives, 
Subcommittee on Courts and 

Intellectual Property, 
Committee on the Judiciary, 

Washington, DC. 

The subcommittee met, pursuant to notice, in room 2237, Ray- 
burn House Office Building, Hon. Carlos J. Moorhead (chairman of 
the subcommittee) presiding. 

Present: Representatives Carlos J. Moorhead, F. James Sensen- 
brenner, Jr., Howard Coble, Bob Goodlatte, George W. Gekas, Mar- 
tin R. Hoke, Patricia Schroeder, and John Conyers, Jr. 

Also present: Thomas E. Mooney, chief counsel; Mitch Glazier, 
assistant counsel; Veronica Eligan, secretary; Betty Wheeler, mi- 
nority counsel; and Susie Park, intern. 

Mr. Moorhead. The hearing will come to order. 

Today the subcommittee is conducting a second day of hearings 
on H.R. 989, the Copyright Term Extension Act of 1995. H.R. 989 
would extend the term of ownership of an individually copjn^ighted 
work from the life of the author plus 50 years to the life of the au- 
thor plus 70 years, and the works for hire from 75 to 95 years. This 
change will more closely resemble the new directive implemented 
by the European Union member states, who are among the largest 
users of our cop3nrighted works. 

Last time the Congress considered and enacted copyright term 
extension legislation was in 1976. At that time the House report 
noted that copyright conformity provides certainty and simplicity in 
international business dealings. The intent of the 1976 act was 
twofold: first, to bring the term for works by Americans into agree- 
ment with the then minimum term provided by European coun- 
tries; and, second, to assure the author and his or her heirs of their 
fair economic benefits derived from the author's work. The 1976 
law needs to be revisited because neither of these objectives is cur- 
rently being met. 

In October 1993, the European Union adopted a directive man- 
dating copyright term protection equal to the life of the author plus 
70 years for all works originating in the E.U., no later than the 
first of July this year. The E.U. action has serious trade implica- 
tions for the United States. 

The United States and the European Union nations are all sig- 
natories of the Berne Copyright Convention, which includes the so- 
called rule of the shorter term, which accords copyright protection 
for a term which is the shorter of life plus 70 years or the term 

(155) 



156 

of the copyright in the country of origin. Once this directive is im- 
plemented, United States works will only be granted copyright pro- 
tection for the shorter life plus 50-year term before falling into the 
public domain in Europe, whereas all of the others will continue on 
for the 70 years. 

The main reasons for this extension of term are fairness and eco- 
nomics. If the Congress does not extend to Americans the same 
copyright protection afforded their counterparts, American creators 
will have 20 years less protection than their European counter- 
parts — 20 years during which Europeans will not be paying Ameri- 
cans for their copyrighted works. Europeans buy more works of 
American artists than they do of any other country's nationals. Any 
imbalance would be harmful to the country and work a hardship 
on American creators. 

I would like to be introduced — to introduce our ranking member 
at this time, but all of us are having two or three markups or hear- 
ings this morning all going on at the same time. I have two mark- 
ups going on right now, plus this hearing, and I know Howard Her- 
man and Mrs. Schroeder and Barney Frank and many of the other 
members have the same problem. 

I will now introduce Jim Sensenbrenner. 

Mr. Sensenbrenner. Thank you very much, Mr. Chairman. 

This subcommittee has important work to do, and this bill is an 
important issue that is before the subcommittee. We've had a num- 
ber of hearings on copyright and patent legislation, and I expect 
that the subcommittee will take action on much of this legislation. 

There is one piece of legislation, however, that hasn't had any ac- 
tion, and that's H.R. 789, which relates to background music and 
licensing fees that have to be paid by owners of retail establish- 
ments. That's just as important as this legislation is, and there 
have been some negotiations that have been going on between par- 
ties on both sides of the issue. Another negotiation session is sched- 
uled for July 28, a little bit more than 2 weeks from now. 

Let me say that the first two negotiation sessions have gotten no- 
where in terms of resolving the problem of retailers having to pay 
licensing fees for having the radio on or having the television on. 
I will not look at this bill favorably unless there is some legislative 
action on H.R. 789 or something similar to it, because leaving the 
music licensing fee issue the way it is now in the passage of this 
bill will simply allow the licensure organizations like ASCAP and 
BMI to harass retailers for another 20 years. I don't think that 
that's acceptable. It is not acceptable to the one-quarter of the 
House of Representatives that have cosponsored H.R. 789, and it 
seems to me that this issue has to be dealt with as a package. 

And I thank the chairman for giving me this time. 

Mr. MOORHEAD. Our ranking minority member of the full Judici- 
ary Committee, John Conyers, is here. John. 

Mr. Conyers. Good morning, Mr. Chairman. 

I'm just trying to get the import of my colleague from Wisconsin's 
remarks as I came in. I guess this is what they call in the music 
business a tie-in. You don't get one without the other. What I want 
to do is look at his bill, though, and find out what the other is, and 
I'm sure I'll have a reaction to it. I don't know how happy I'll be, 



157 

but I'd like to reserve any other additional comments that I may 
make for later on in the hearing. 

Thank you. 

Mr. MOORHEAD. The gentleman from Virginia, Mr. Goodlatte. 

Mr. Goodlatte. I'd just like to thank the chairman for holding 
these hearings. I don't have any comments at this time. Thank you. 

Mr. MooRHEAD. Our first witness will be Ms. Marybeth Peters, 
who is the Register of Copyrights for the United States. From 1983 
to 1994, Ms. Peters held the position of Policy Planning Advisor to 
the Register. She also served as Acting General Counsel of the 
Copyright Office, Chief of both the Examining and Information Ref- 
erence Divisions. Ms. Peters holds an undergraduate degree from 
Rhode Island College and a law degree from George Washington 
University. She has served as a consultant on copyright law at the 
World Intellectual Property Organization and authored the "Gen- 
eral Guide to the Copyright Act of 1976." 

Welcome, Ms. Peters. 

Our second witness on the first panel will be Ambassador 
Charlene Barshefsky, the Principal Deputy U.S. Trade Representa- 
tive. Ambassador Barshefsky has been instrumental in achieving 
important intellectual property trade agreements, most recently 
helping to formulate an extensive intellectual property rights 
agreement with China. She was the key policymaker and nego- 
tiator of the Comprehensive Framework Agreement with Japan 
which serves to protect American copyright owners in an important 
consumer market. Ambassador Barshefsky has also led the admin- 
istration's effort to develop bilateral regional trade initiatives in 
South and Central America, with particular emphasis on intellec- 
tual property rights in Brazil and i^o-gentina. 

Welcome, Ambassador Barshefsky. 

Our third witness on the first panel is Commissioner Bruce Leh- 
man, the Assistant Secretary of Commerce and Commissioner of 
Patents and Trademarks of the United States.- Commissioner Leh- 
man served as counsel to this subcommittee for 9 years and as 
chief counsel for a number of those years. Mr. Lehman has been 
a key player on intellectual property issues between the United 
States and Asia and the European Union, and has also headed nu- 
merous delegations to consider intellectual property issues at the 
World Intellectual Property Organization. 

Welcome, Commissioner Lehman. 

We have written statements from our first three witnesses, 
which I ask unanimous consent be made a part of the record, and 
I ask you each to summarize your statements in 10 minutes or less. 
I ask that the subcommittee hold their questions for all three wit- 
nesses until they have completed their oral presentations. 

We will begin with Ms. Peters. 

STATEMENT OF MARYBETH PETERS, REGISTER OF COPY- 
RIGHTS AND ASSOCIATE LIBRARIAN FOR COPYRIGHT SERV- 
ICES, LIBRARY OF CONGRESS 

Ms. Peters. Thank you. 

Mr. Chairman, members of the subcommittee, I am pleased to 
offer my comments on H.R. 989, the Copyright Term Extension Act 
of 1995. 



9!).9R7 QA _ A 



158 

In 1993, before any legislation was introduced, the Copyright Of- 
fice initiated a study on duration of copyright which included a 
hearing as well as a long comment period. I have submitted a de- 
tailed analysis and statement for the record. Much of what we 
learned is reflected in that statement. I will speak briefly now on 
what I believe are some of the more important factors to be 
weighed in considering this legislation. 

This legislation, which appears in part to be an attempt to have 
equivalent terms of protection with the important countries of the 
European Union, would increase copyright terms of all works, in- 
cluding existing works, for 20 years. This would be a significant 
change in our copyright law, and it would have a significant impact 
on our society. 

Our Constitution gives Congress the power to grant to authors 
exclusive rights for limited times to promote the progress of science 
and the arts. Thus copyright is granted to promote the public inter- 
est by stimulating creativity and by stimulating the dissemination 
of knowledge. Authors are given control over their works as an in- 
centive to produce. This control, however, is for a limited time. 
After this time, the work becomes part of the public domain and 
is available to be used by society as a whole. 

When considering the constitutional mandate, a number of ques- 
tions are raised. First, is this legislation in the public interest? Will 
it encourage authors to create and publishers to disseminate new 
works? If so, at what cost? Specifically, what will be the effect of 
freezing the public domain for 20 years? Second, does this legisla- 
tion violate the limited times provision of the Constitution? 

In attempting to evaluate how extending the term would stimu- 
late creativity, it is difficult to see how moving from a term of life- 
plus-50 to life-plus-70 will encourage more authors to write. It 
could, however, provide additional income that would finance the 
production and publication of new works. Moreover, I believe there 
is a broader public interest. 

Mr. Chairman, in your statement introducing this bill, and again 
today in your opening remarks, you emphasized the importance of 
having harmonization of copyright terms of protection among our 
major trading partners. As you said, conformity vis-a-vis the copy- 
right term, as well as conformity in other areas, provides certainty 
and simplicity in international business dealings. 

You also noted that American authors should be given the same 
protection afforded their counterparts in Europe. I agree with this 
assessment. The importance of granting American authors the 
same protection as that granted to authors elsewhere has long been 
a position of the United States. When the copyright term was first 
extended in 1832, this was the argument on which the increase 
was based. The rapidly expanding international markets for copy- 
righted works, especially in light of the global information super- 
highway, supports such an effort. 

Moreover, the reason for amending our law at this time is to 
bring us into conformity with that of the European Union. Unless 
the United States extends its terms, our authors and other copy- 
right owners will be denied money that they otherwise would be 
entitled to receive. 



159 

The Copyright Office supports H.R. 989 for two reasons. One, in 
the global information society, we have a need to harmonize copy- 
right terms throughout the world, and we believe that life-plus-70 
will become the international norm. Two, as a leading creator of 
copyrighted works, the United States should not wait until it's 
forced to increase the term. Rather, it should set the example for 
other countries. 

We support this bill largely on international grounds. However, 
we are not unmindful of some negative impacts that this bill would 
have in the United States. Enactment of this bill in one stroke 
freezes works from coming into the public domain for 20 years. 
This involves works copyrighted between 1920 and 1940. I am con- 
cerned about the effect that this will have on libraries, archives, 
and educational institutions who are striving to improve American 
education and who serve as the guardian of our Nation's cultural 
heritage. 

Libraries, like the Library of Congress through its National Digi- 
tal Library efforts, are attempting to bring unique materials, in- 
cluding those still protected by copjoight, to the American edu- 
cational community. The Library of Congress has been diligent in 
seeking copyright permissions for its digital library projects. How- 
ever, much of the unique materials, photographs, prints, manu- 
scripts, letters are very difficult to determine the copyright status 
and the copyright terms of such works. Finding the current copy- 
right owner is almost impossible. The Library has spent thousands 
of hours searching copyright records and seeking permissions. 

Thus, considering the need to balance the rights of copyright 
owners with the benefits to be gained by the public, the Copyright 
Office opposes an additional term of 10 years to the unpublished 
works covered by section 303. The authors of these works died be- 
fore 1953. Many libraries, archives, and historical societies, as well 
as authors and publishers, have been anxiously awaiting January 
1, 2003, when these works are scheduled to enter the public do- 
main. 

We also suggest a very narrow exemption for the additional 20- 
year term to provide instructional materials to American schools by 
nonprofit libraries, archives, historical societies, and the like. In 
addition, there are other issues that were raised by four library as- 
sociations in their letter of July 11 and by Dr. Billington, the Li- 
brarian of Congress, in his letter of July 12. The problems identi- 
fied are preservation of materials and the ability to provide users 
with access of those materials. 

These problems are not caused by this bill. They are, however, 
exacerbated by it. This is because the older the work is, the harder 
it is to find the copyright owner and the more it costs to obtain per- 
mission to use the work. 

Libraries and archives play a critically important role in our 
country's social and cultural welfare, as well as its economic 
growth. The unique materials in their collections must be pre- 
served and made available to our citizens. 

I would like to see these problems solved, and I hereby offer the 
services of the Copyright Office and the Library of Congress to ad- 
dress the issues of, one, the unbeatable copyright owner; two, pres- 
ervation by libraries of these unique materials; three, access to col- 



160 

lections of works that are no longer commercially available or via- 
ble. The Office has served this committee in the past in the revi- 
sion of the Copyright Act of 1909, and it served it again recently 
in the Copyright Reform Act, when through an advisory committee 
recommendations were made to solve a number of problems that 
had been identified with the registration system. I believe we can 
serve this same useful role now. 

I would welcome the opportunity to discuss with you and your 
staff the specifics of how the Copyright Office can assist the sub- 
committee in its work on these important issues. Thank you for the 
opportunity to testify here today. 

[The prepared statement of Ms. Peters follows:] 



161 

Prepared Statement of Marybeth Peters, Register of Copyright and 
Associate Librarian for Copyright Services, Library of Congress 

H.R. 989 proposes to extend the basic United States copyright term by twenty years in 
order to reflect increased life expectancy and to harmonize the U.S. copyright term with that of 
the European Union. The most prominent change ordered by the EU Directive is the requirement 
that member states recognize a general duration standard of life of the author plus 70 years. 
With respect to countries outside of the EU, the Directive applies the rule of the shorter term, 
meaning countries having a shorter term will be limited to the term established by the country 
of origin. 

The development of a global information infrastructure where consumers can purchase 
directly from creators located anywhere in the world is, in itself, a strong argument for 
harmonization of copyright term. Other valid arguments include the loss of revenues for U.S. 
authors by the application of the rule of the shorter term and the fact that the existing terms may 
not cover an author during his or her lifetime, a widow or widower, or one generation of heirs. 

This is the first time that the United States has considered extending the copyright term 
since the 1976 act went into effect on January 1, 1978. A key consideration is whether H.R. 
989 satisfies the constitutional goal of fostering the creation and dissemination of intellectual 
works. 

While the Copyright Office generally supports H.R. 989, it does oppose adding ten years 
to the term of unpublished works covered by 17 U.S.C. 303. We also question whom the 
beneficiary of the extra 20 years should be, especially in cases where there is no existing 
termination right. Moreover, we condition our support on the solution of certain problems faced 
by libraries and educational institutions with respect to preservation, access and appropriate 
nonprofit educational uses that are beyond fair use. We have made several suggestions 
concerning approaches for resolving those issues, including creating a licensing system for 
authors and owners who cannot be located, developing guidelines under section 108 for material 
that can be used without payment for nonprofit educational purposes or creating an exemption 
for nonprofit uses related to instructional activities in the extended term. 

Solutions to these problems might be more forthcoming if this subcommittee directed the 
parties to work these problems out. The Copyright Office would be willing to assist in 
facilitating agreement on possible solutions to the problems of preservation and access of older 
copyrighted works. 

r:\mk\HR989.one 



162 



Chairman Moorhead, joined by Rqiresenutives Schroeder, Coble, Goodlane, Bono, Gekas, 
Berman, Nadler, Clement, and Gallegly, ' introduced H.R. 989 on February 16, 1995. The bill known 
as the "Copyright Term Extension Act of 1995" would add twenty years to the basic U.S. copyright term, 
bringing it to life plus seventy years. Senator Hatch introduced an identical bill, S. 483, on March 2, 
1995. In part these bills are a response to a 1993 Directive of the European Union (EU) on harmonizing 
copyright term; ^ the thrust of this Directive is the requiremenl that member states recognize a general 
copyright duration standard of life of the author plus 70 years. It is clear that the EU Directive on Term 
will ultimately result in a longer tenn for most, if not all, European nations, since countries wishing to 
join the Union or the European Economic Area will also be required to go to life plus 70. Also certain 
non-European countries already have longer terms or will consider extending them in the future. With 
respect to countries outside of the EU, the Directive applies the rule of the shoiter term, meaning 
countries having a shoner period of protection will be limited to the term established by the country of 
origiiL ' 



Since then four other representatives have signed on to H.R. 989: Becerra. Gordon, Quillen and Conyers. 
Council Directive 93/98, 1993 OJ. (L 290/9), [hereinafter EU Direaive on Term]. 
EU Directive on Tenn, an 7. 



dirr\dunuion.loc 
July II, 199S 



163 



Under current U.S. copyright law, the EU mandatory adoption of the rule of the shoner term 
will mean that popular U.S. works will not get the benefit of a longer term in any of the EU countries. 
Other countries with longer terms than life plus SO may also move to make any period of protection 
longer than SO years reciprocal. The question of harmonizing copyright term in all countries is critical 
for U.S. rightsholders. Consequently, with some reservations, the Copyright Office generally supports 
term extension. Those reservations concern the preservation and access to unpublished and other works 
that are no longer commercially available. 

Congressman Moorhead, in introducing H.R. 989, noted that times have changed since duration 

was considered in the 1976 revision effort: 

The last time the Congress considered and enacted copyright term extension 
legislation was in 1976. At that time the House report noted that copyright 
conformity provides certainty and simplicity in iiuemational business dealings. 
The intent of the 1976 act was two-fold: Pint, to bring the term for works by 
Americans into agreement with the then minimnin term provided by European 
countries; and second, to assure the author and his or her heirs of the fair 
economic benefits derived from the author's work. The 1976 law needs to be 
revisited since neither of these objectives is being met * 

My statement summarizes the background and history of copyright duration in the United States, 
analyzes the changes proposed in H.R. 989 in light of existing U. S. copyright law and the EU Directive, 
notes and evaluates the major arguments for aixl against term extension in light of the considerations the 
House Judiciary Conmiittee weighed when extending the copyright term in 1976, aixl sunmiarizes certain 
questions and issues in the conclusions. 



141 Cong. Rec. E379 (daily ed. Feb. 16. 1995) (statement of Rep. Moorhead). 



dirr\<lunboii.loc 
July II. L893 



164 



II. HISTORY OF DURATION OF COPYRIGHT TERM IN UMTED STATES LAW 

The history of the duration of copyright protection in the United States reveals a strong 
international influence. When it came time to adopt the first copyright law, Congress looked to the 
English common law system, the model it knew best. England viewed intellectual property as a property 
right but also viewed it in certain functional terms — as a device "to promote creative endeavors, on the 
one hand, and to ensure maximum public access to the benefits of these endeavors on the other. " ' Early 
U.S. copyright statutes adopted English duration standards. As discussed below, the United States 
abandoned the standard of one fixed term of protection, renewable for an additional fixed term in 1976 
when it adopted the life of the author plus SO years, standard of the Berne Convemioa ' At that time 
most developed and iixlustrialized countries with the exception of the United States, ' belonged to Berne 
and the Berne minimum term was life of the author plus 50, years. 

A. DEVELOPMENT OF FEDERAL COPYRIGHT LAW 

The first federal copyright law enaaed in 1790 stems from the constitutional clause giving 
Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times 



' Sam Ricketson. The Bcme Convention for the Protection of Literaiv and Anistic Works: 1886-1986 321 
(Centre for Cotmnercial Law Snidies Queen Mary College 1987). 

' See Convention concerning the Creation of an International Union for the Protection of Literary and Artistic 
Works (Sept. 9, 1886, revised in 1908, 1928, 1948, 1967, 1971). Berne Convention art. 2(8) (Paris text) 
[hereinafter Berne Convention!. 

' China and the Soviet Union were not members of Benie at that time either. 

dirr^unaonloc 

July 11. 1995 3 



165 



to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." ' The 

constitutional clause thus sets out two goals "to foster the growth of learning and culture for the public 

welfare, and the grant of exclusive rights to authors for a limited time is a means to that end." ' 

Although the primary purpose of the copyright law is to foster the 
creation and dissemination of intellectual works for the public welfare, 
It also has an important secondary purpose. To give authors the reward 
due them for their contribution to society. 

These two purposes are closely related. Many authors could not devote 
themselves to creative works without the prospect of remuneration. By 
givmg authors a means of securing the economic reward afforded by the 
market, copyright stimulates their creation and dissemination of 
intellectual works. Similarly, copyright protection enables publishers and 
other distributors to invest their resources in bringing those works to the 
public. "• 

Authors would not be able to continue to create unless they earned income on their finished 
works. The public benefits not only from an author's original work but also from his or her further 
creations. Although this truism may be illustrated in many ways, one of the best examples is Noah 
Webster who supported his entire family from the earnings on his speller and grammar during the twenty 
years he took to complete his dictionary. 

1. The Fng li sh Stafirt* nf Anii»- 

The Statute of Anne, enacted in England in 1710, was the first copyright statute to gain wide 
anentioa Its provisions served as a model not only for the United States, but many other nations as well. 



US. Const art I, §8, cl. 8. 



' REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 
HOUSE COMM. ON THE JUDICIARY. 87TH CONG., 1ST SESS., COPYRIGHT LAW REVISION (Pan 1. 5) 
(Comm. Print 1961). [hereinafter Copyright Law Revision Part 1]. 

"* Id. at 5-6. These principles are noted in nx>re detail in H.Rep. No. 2222, to Congress, 2d Sess. on the 
Copyright Act of 1909. 'Not thai any panicular class of citizens, however worthy, may benefit, but because the 
policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention 
to give some bonus to authon and inventors." I^ 

dirrxdunboaloc 

luly II. I99S 4 



166 



This historic legislation was adopted at the insistence of publishers, who were experiencing increasing 
problems with literary piracy. 

The Statute of Anne granted an author and his assigns an original term of 14 years from the date 
of publication, plus a second term of 14 years should the author be living at the expiration of the first 
term. " In 1814, England changed its duration standard to a term of 28 years plus the remainder of 
the author's namral life, should he or she be living at the expiration of the first term. '^ In 1842, 
England again extended the copyright term to 42 years or the life of the author plus seven years, 
whichever should be longer. " England was one of die original signatory couiuries of the Berne 
Convention and has been a member since December 5, 1887. The original Berne text left the copyright 
term to the member country in order to encourage countries to join. In 1908, however, the Berne 
Convention went to a term of life of the author, plus SO years. " Nine out of fifteen Berne countries 
had gone to life plus fifty by 1908. '^ In the Copyright Act of 1911, England extended copyright 
duration to the life of the author plus SO years. '* 

2. Deyelonment in Colonial America . 

Under the Articles of Confederation, 12 of the original 13 states enacted copyright statutes. Of 
these 12 states, six applied the duration standard of the Statute of Anne: an original term of 14 years from 



" 8 Anne, ch. 19. 1710. 

" 54 Geo. 3, ch. 156. 

" 5 & 6 Vict, ch 45. 

" Berne Convention an. 7(1) (Berlin text). This term was made compulsory in Brussels in 1948. 

" Ricketson. supra oote 5, at 325. 

" I & 2 Geo. 5, ch. 34. 



dirrVdunaon loc 
July II, 1993 



167 



the date of first publication, plus a second term of 14 years should the author be living at the expiration 
of the first term. " The other six states adopted single terms ranging from 14 years to 21 years. ' 

3. The 1790 CopvriEfat Act . 

In the deliberations over the drafting of the U.S. Constitution, there appears to have been near 
unanimity among the framers that copyright and patent should fall within federal powers. James Madison, 
in writing the Federalist Pai?ers. only devoted one paragraph to the Copyright-Patent Clause in which he 
observed that the "utility" of the provision could "scarcely be questioned." One of the early tasks 
performed by the first Congress was passage of the Copyright Act of 1790. " This historic legislation 
established an initial copyright duration term of 14 years, to be followed, should the author still be living, 
by a 14 year renewal term. This term was the same as the Statute of Anne's and also that of six states 
imder the Articles of Confederation. In 1831, Congress increased the term to 28 years, with a renewal 
term of 14 years. ^'' The purpose of increasing copyright duration was to place "authors in this country 
more nearly upon an equality with authors of other countries.' " England had, as previously meiuioned, 
changed its term in 1814 to 28 years plus life if the author was still living at the end of the 28th year. 



" James J. Guinan, Duration of Copyright. Coovrieht Office Smdv No. 30 (1957), Subcomm. on Patents. 
Tradgmaric and Copyrights of the " ^at ^ rnmm on the Judiciary. 86th Cong. 2d Sess., COPYRIGHT LAW 
REVISION STUDIES 1 (Comm. Print 1960). 

" Massachusetts, Rhode bland, and Virginia adopted a single term of 21 yean. New Hampshire adopted a 
single term of 20 yean, and North and South Carolina adopted a single term of 14 years. 

" 1 Stat. 124 (1790). 

'-' 4 Stat. 436(1831). 

" Repon of the Comminee on the Judiciary of the House of Representatives, 7 Register of Debates, appendix 
CXIX. 

dirr\dunaon.loc 

July II. 199} 6 



168 



B. SIGMnCA>fT 20TH CENTURY REVISIONS OF COPYRIGHT TERM 

1. The 1909 Copyright Act . 

When Congress increased the U.S. copyright term in 1909, Berne had already adopted life of the 
author plus 50 years for the basic copyright term. The new U.S. provision created a basic copyright term 
of 28 years from the date of first publication or registration, plus a renewal term of 28 years. " Early 
drafts of this legislation proposed that the basic copyright term be life of the author plus 50 years. 
Copyright proprietors advanced two arguments in support of the life plus 50 duration. They argued that 
authors were increasingly outliving the copyright protection in their works and that it was unfair for 
authors to lose their protection in their old age. Second, the life plus 50 standard was gaining increasing 
acceptance as the international standard of protectioa 

Although little organized opposition was raised against the life plus 50 term. Congress was not 
willing to accept such a radical departure from what it saw as American copyright tradition. The U.S. 
renewal system permitted works that were not commercially valuable and, therefore, not renewed to go 
imo die public domain after 28 years. The increase in the renewal term from 14 years to 28 years 
appears to have been the congressional response to copyright proprietors' concerns that the term should 
be longer. A renewal mechanism was preferred over one set term because it gave authors who sold their 
rights for less than full value a second chance to secure a more equitable return in the renewal period and 
because it placed works that were not renewed in the public domain where they could be used by 
anyone." 



" 35 Stat 1075, 17 U.S.C. §24. 

" H.R. Rep. No. 2222, 60th Cong. 2d Sess. (1909). 

dirr\dunaoo.loc 

July II, 1995 7 



169 



2. Copyright Revision . 

Congress was finally willing to embrace the international standard of life plus 50 when it revisited 
the issue in deliberations leading to the 1976 Copyright Act. In the initial report prepared "to pinpoint 
the issues and stimulate public discussion, " •* the Copyright Office proposed a duration of 28 years from 
first public dissemination, coupled with a renewal term of 48 years. This would bring the maximum term 
from 56 to 76 years. " The Copyright Office Report noted two general approaches to measure the 
copyright term (1) from the dissemination of the work or (2) from the death of the author. It concluded 
that 'a term based on dissemination has the greater advantages for the public, and that the principal 
purposes of a term based on the death of the author can be achieved by a sufficiently long term based on 
dissemination." ^* The Office's proposal was widely criticized; the parties preferred a life plus 50 year 
standard. ^^ By 1964, the working draft proposed one copyright term, life plus 50 years for most works. ^' 
Debate continued, however, on how long this term should be and what should be done about corporate 
works and subsisting copyrights. 



'* Copyright Law Pan 1, at Preface, p. i. 

•' Id. at 50. 

'* Id. at 48-49 (emphasis added). One reason the Report recommended measuring the term from dissemination 
was thai approximately 40% of works were 'corporate' and many individual works were HittAminati'H anonymously. 

" SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION 
OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL, HOUSE COMM. ON THE JUDICL\RY. 89TH 
CONG.. 1ST SESS.. COPYRIGHT LAW REVISION PART 6 (Comm. Print 1965) [hereinafter Copyright Uw 
Revision Part 6]; REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE 
US. COPYRIGHT LAW: DISCUSSIONS AND COMMENTS, HOUSE COMM. ON THE JUDICIARY, 88TH 
CONG.. 1ST SESS.. COPYRIGHT LAW REVISION PART 2 (Comm. Prim 1963) [hereinafter Copyright Uw 
Revision Pan 2]. 

■' PRELIMINARY DRAFT FOR REVISED U.S. COPYRIGHT LAW: DISCUSSIONS AND COMMENTS 
ON THE DRAFT, HOUSE COMM. ON THE KJDICL\RY, 88TH CONG.. 2D SESS.. COPYRIGHT LAW 
REVISION PART 3, 19-20 (Comm. Print 1964) [hereinafter Copyright Law Revision Pan 31. 

dirr\duniioii.loc 

July II. 1993 8 



170 



It is interesting to review those earlier discussions. The opposing arguments are set out by two 

well known copyright experts. The first said: 

I am in favor of, generally speaking, short rather than long terms. I've 
never yet heard any case, except the fact that it's done differently 
elsewhere, for a longer term, and if you're going to measure by life, then 
life-plus-25. That takes care of the minority [sic] of children, and 
indeed their education, even these days. The only possible case it doesn't 
take care of is the case of a very young author who dies leaving a very 
young wife, and my only answer to that is if she hasn't been able to 
remarry in the course of 25 years perhaps this copyright shouldn't 
necessarily continue to support her. *' 



The second said: 



I would prefer that protection be for at least 100 years, rather than 76, 
when there is a renewal. It is not unreasonable to allow an author and 
his heirs to keep and enjoy property rights in the work he has created for 
at least that long — particularly since others will be exploiting his work 
for profit after he has been divested of it '• 



3. 1976 Act 

Congress reviewed all of the views expressed during the revision period when determining 

the appropriate U.S. copyright term and ultimately opted for a basic term of life plus 50 years. The 

House Judiciary Committee summarized seven reasons for changing the copyright term: 

1 . The present 56-year term is not long enough to insure 
an author and his dependents the fair economic benefits 
from his works. Life expectancy has increased 
substantially, and more and more authors are seeing their 
works fall into the public domain during their lifetimes, 
forcing later works to compete with their own early 
works in which copyright has expired. 



-' Copyright Law Revision Pan 2 at 90 (staiement of Professor Ralph S. Brown). 
'° Id. at 3 16 (statement of Irwin Kaip). 



dirrVdundoo.loc 
July 11. 1995 



171 



The tremendous growth in communications media has 
substantially lengthened the commercial life of a great 
many works. A short term is panicularly discriminatory 
against serious works of music, literature, and an, whose 
value may not be recognized until after many years. 

Although limitations on the term of copyright are 
obviously necessary, too shon a term harms the author 
without giving any substantial benefit to the public. The 
public frequently pays the same for works in the public 
domain as it does for copyrighted works, and the only 
result is a commercial windfall to certain users at the 
author's expense. In some cases the lack of copyright 
protection actually restrains dissemination of the work, 
siiKe publishers and other users cannot risk investing in 
the work unless assured of exclusive rights. 

A system based on the life of die author would go a long 
way toward clearing up the conAision and uncertainty 
involved in the vague concept of "publication," and 
would provide a much simpler, clearer method for 
computing the term. The death of the audior is a 
definite, determinable event, and it would be the only 
date that a potential user would have to worry about 
All of a particular author's works, including successive 
revisions of thent, would fall into the public domain at 
the same time, thus avoiding the present problems of 
determining a multitude of publication dates and of 
distinguishing "old' and "new" matter in later editions. 
The bill answers the problems of determining when 
relatively obscure authors died, by establishing a registry 
of death dates and a system of presumptions. 

One of the worst features of the present copyright law is 
the provision for renewal of copyright A substantial 
burden and expense, this unclear and highly technical 
requirement results in incalculable amounts of 
unproductive work. In a number of cases it is the ^ause 
of inadvertent and unjust loss of copyright Under a 
life-plus-50 system the renewal device would be 
inappropriate and unnecessary. 

Under the preemption provisions of section 30 1 and the 
single Federal system they would establish, authors will 
be giving up perpetual, unlimited exclusive common law 
rights in their unpublished works, including works that 
have been widely disseminated by means other than 



dtrr\duniioa.loc 

July 11. 1995 10 



172 



publication. A statutory term of life-plus-50 years is no 
more than a fair recompense for the loss of these 
perpetual rights. 

A very large tnajority of the world's countries have 
adopted a copyright term of the life of the author and 50 
years after the author's death. Since American authors 
are frequently protected longer in foreign countries than 
in the United States, the disparity in the duration of 
copyright has provoked consider able [sic] resentment 
and some proposals for retaliatory legislation. Copy- 
righted works move across national borders faster and 
more easily than virtually any other economic commod- 
ity, and with the techniques now in common use this 
movement has in many cases become instantaneous and 
effortless. The need to conform the duration of U.S. 
copyright to that prevaleru throughout the rest of the 
world is increasingly pressing in order to provide 
certainty and simplicity in international business 
dealings. Even more important, a change in the basis of 
our copyright term would place the United States in the 
forefront of the ituemational copyright community. 
Without this change, the possibility of future United 
States adherence to the Berne Copyright Union would 
evaporate, but with it would come a great and immediate 
improvement in our copyright relations. All of these 
benefits would accrue directly to American and foreign 
authors alike. " 



" H R. Rep. No. 1476, 94th Cong., 2d Sess. 134-5 (1976). 

dirrVdunooaloc 

July 11. 1995 11 



173 



II. ANALYSIS OF H.R. 989 

Before one can compare the provisions of H.R. 989 with existing law and the EU Directive on 
Term, it is first necessary to review U.S. term provisions and those established by the EU Directive. 

A. EXISTING U.S. LAW 

One of the major underpiimings of the 1 976 Copyright Act was the adoption of a single copyright 
term for works that are created and fixed in a tangible medium of expression for the first time on and 
after January I, 1978. For most works, the basic copyright term is life of the author plus an additional 
SO years after the author's death. This protection attaches automatically from the momeiu of creatica In 
the case of a joint work by two or iix>re authon who did not work for hire, the term lasts for SO years 
after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous 
works (unless the author's identity is revealed in Copyright Office records), the duration of copyright is 
75 years from fint publication or 100 years from creation, whichever is shorter. " 

The United States has not considered extending copyright term siitce 1976. In the 1976 Act, with 
an eye to possible fumre adherence to the Berne Conventioa the United States adopted a basic term of 
life plus fifty years for works created after January 1, 1978. Consequently, when the United States joined 
the Berne Convention in 1989, its basic term was already consistent with BeriK. 

Before we joined Berne, there was some discussion about the term for anonymous and 
pseudonymous works, and the Ad Hoc Working Group on U.S. Adherence to the Berne Convention 
concluded that §302 (c) was 'incompatible with Berne because those such works published more than 50 



" 17 U.S.C. §§302-305. 

dirr\<tunaoa.loc 

July 11, 1995 12 



174 



years after creation would be protected for less time than Berne requires. " " However, no changes were 
made to the copyright term provisions in the act implementing Berne. '* 

B. THE EU DIRECTIVE ON TERM 

When some European countries began to form what is now the European Union, " certain 
member countries already had longer terms than the Berne minimum or differeiu terms for ceruin works. '' 
At a hearing in Brussels on October 24, 1980, these coumries began to consider what differences in 
copyright term would mean in light of a single internal market " Some commentators have observed 
that the EU really did not discuss whether or not the term should be longer but simply discussed whether 
the term should be harmonized. " 

1. Purpose . 

On October 29, 1993, the EU issued its Directive on Term requiring member states to implement 
the terms of the Directive by July 1, 1995. The Directive requires a basic term of life plus 70. The 



" Final Repon of the Ad Hoc WorUng r.mnp on U.S. Adherence to the Berne Convention. 10 COLUM.- 
VLA J. L. & ARTS 581 (1986). 

" Berne Convention Implementing Act, Pub. L No. 100-568, 102 Stat. 2853 (1988). 

" We primarily use the term European Union rather than the European Community. 

" Germany had the longest term life + 70, but Spain's term was life + 60 and France had a life plus 70 term 
for musical works. Other countries had made extensions to compensate for war loss. Ricketson, supra note 5, at 
336. 

" Silke von Lewinski, EC Proposal for Directive Hanp nm-nng rh e Term of Protection of Copyright and 
Certain Related Rights. 23 IIC 785, note 1. 

" Id. at 786. See also Peter Wienand, Copyright Term Harmonisation in the European Union. 40 Copyright 
World (May 1994). But see Proposal for a Council Directive HarmnnJTin g the Term of Proteaion of Copyright 
and Cenain Related Rights Commission (92) 33 final. 

dirr\dunDoaloc 

July 11. 1995 13 



175 



purpose of the EU Directive is to harmonize the terms of copyrighted material and related works among 
member countries. 

Although the adoption of life plus 70 years as the standard may appear somewhat surprising since 
most nations of the EU had a term of life plus 50 years, the EU gave a number of reasons for moving 
to a term of life plus 70 years including that since the average lifespan in the Community had risen, the 
life plus 50 years standard was no longer adequate to cover an author and two generations of his or her 
descendants, " and that harmonization to life plus 50 years would have required some rightsholders to 
lose existing rights, and the European Union was philosophically opposed to such a result *' 

2. Comparison of spedflc EU provisions with U. S. law and H.R. 989 . 

Although adoption of life plus 70 years has received the most attention in the United States, other 
provisions in the Direaive should be examined in light of existing U.S. law and the H.R. 989 proposab. 
As in U.S. law, the term for a joim author is measured from the death of the last surviving author. 

a. Anonvmoua worka . In the case of anonymous or pseudonymous works, the 
Directive establishes a term of 70 years after the work is lawfiilly made available to the public. *' 
Current U.S. law establishes a term of 75 years from first publication or 100 years firom creation, 
whichever expires first *' H.R. 989 would increase this term to 95 years from fint publication or 120 
years from creation, whichever expires first 



" Protection of two succeeding generatioiu is the standard goal recognized in Berne. §ss E^ Directive on 
Term, Recital (5). 

" EU Directive on Term. Recital (S) & (10); P. Wienand, Copyright Tenn Hanaon \TMi<}^ in th e European 
Union. 40 Copyright World 24, 25 (May 1994). 

" EU Direaive on Term. art. 1, para. 3. 

" 17 U.S.C. 5302(c). 

dirr\dunaoa.loc 

Julyll. I99S 14 



176 



b. Legal entity as initial riehtsholder . Where a member state law vests rights in 
an entity other than in an individual author, the Directive provides a term of 70 years measured from the 
year of publication. " The compatible provision in U.S. law is the works for hire one which establishes 
the term as 75 years from first publication or 100 years from creation, whichever expires first. " H.R. 
989 would increase this term to 95 years ftom first publication, or 120 years from creation, whichever 
expires first. 

c. Audiovisual works . E^ovisions governing audiovisual works are considerably 
different. In the United States, audiovisual works are generally works made for hire. This is not true in 
Europe. Under the Directive, the term is determined by the lives of four individuals. *' The Directive 
states the term shall expire 70 years after the death of the last of the following persons to survive "the 
principal director, the author of the screenplay, the author of the dialogue, and the composer of music 
specifically created for use in the cinematographic on audiovisual work." ** The Directive's term for 
audiovisual works is at least equivalent to and may be longer than existing law or the proposal in H.R. 
989. *' 

d. Rights protected as neiriibop fg fr rpl ated rights . The Directive also specifies 
terms for neighboring rights. The Directive gives producers of sound recordings 50 years from first 



" EU Directive on Term, ait. 1 , para. 4. The laws of most member states of the EU do not recognize the 
work for hire doctrine; rights generally vest in individual authon. However, it does exist in certain countries and 
for certain works, e.^., collective works, and paragraph 4 coven those exceptions. 

** 17 U.S.C. 1302(c). 

" EU Directive on Term, ait 2, para. 1 . 

** Id. EU Directive on Term, an. 2, para. 2. 

" A number of the comments received in RM 93-8 confuse the term for motion pictures which is spelled 
out in an. 2 of the EU Directive on Term. The provision in an 1 , para. 4 for collective works or where a legal 
person is designated as the rightsholder. 

dirr\cturaDoa.loc 

July 11. 1995 15 



177 



publication or first communication to the public, whichever is first. " In the United States, where sound 
recordings are protected generally as works made for hire, they are under copyright for at least 75 years. 
The Directive gives broadcasting organizations protection for 50 years from the date of first transmission. " 

Finally, the Directive generally gives performers protection for 50 years from the date of the 
performance. '" 

e. Protection of prevlouslY unpubUshed work . Article 4 of the Directive provides 

a special term of protection to anyone who publishes a previously unpublished work whose copyright term 
has otherwise expired. " The term of protection is 25 years from the time when the work is first 
lawfully published or lawfully communicated to the public. The intent is to induce for early publicatioa " 

The only corollary in U.S. law is §303, which provides that where a work is created but not published 
before January 1, 1978, and is published by December 31, 2002, the copyright term is extended for 25 
years. H.R. 989 extends the term for these works by ten years. If such works are published by the end 
of 2002, there is another 35 years of protectioa 

3. Effect of EU Directive on other countries . 

The most prominent change ordered by the Directive is the requirement that all member states 
recognize a general copyright duration standard of life of the author plus 70 years and that, with respect 
to countries outside of the EU, each state is to apply the rule of the shorter term: Foreign countries 



*• M-, art. 3, panL 2. 
" li, art 3. pan. 4. 
'• M-, art 3, part. I. 



" An. I, para. I seu the first term, life of the author and 70 yean after his or her death, tunning irrespective 
of the date a work is lawfully made public. 

" Lewinski. suora note 36 at 801. n. 65. 

dirr\duraooD.kx 

July II. 1993 16 



178 



having a shoner term will be limited to the term established by the country of origin. " U.S. 
rightsholders reaction to this was immediate — their position was that the U.S. had to raise its term of 
protection to avoid imposition of the rule of the shorter term. 

The Directive mandates that these changes should be made by July 1, 1995. Although that goal 
has not been met, the United Kingdom has already proposed amending its law to the longer term and 
other EU members are expected to comply. In addition, countries that belong to the European Economic 
Area must also adopt the Directive. 

There are a number of countries that are seeking eventual membership in the European Union 
or the European Economic Area. Such couiuhes iiKlude Poland, Hungary, Turkey and the Czech 
Republic. In preparation for this, it is likely that these coumries will amend their copyright laws to reflect 
the requirements of the Directive. There is also some indication that other coumries that are in the 
process of adopting new copyright laws will adopt a life plus 70 standard. For example, the new 
Slovenian copyright law provides for a term of life plus 70. 

With respect to the Berne Convetuion, it is unclear whether life plus 70 will be adopted in the 
near future. ^ However, the likelihood increases as more countries move to a life plus 70 term. 

B. SECTION BY SECTION ANALYSIS OF H. R. 989 

The approach taken by H.R. 989 is basically to amend the existing copyright provisions on term 
by adding 20 years to the date in the provisioa The bill does not propose any changes to ownership of 
rights in the copyright of the extended term. 



" EU Directive on Term, art 7. 



" Life plus 70 was on the original agenda of the exercise begun in 1991 to adopt a Protocol to the Berne 
Convention. However, at the meeting of the Governing Bodies in September, 1992 there was agreement to reduce 
the scope of the possible protocol to 10 critical issues. Life plus 70 was removed from the agenda. A number of 
countries, not including the United States, have suggested that this topic be put back on the agenda. 

dirr\dufation loc 

July 11. 1995 17 



179 



1. Duration of works created on or after January i , |<yT» 

Under H.R. 989, the basic copyright term would be extended from life of the author plus 50 years 
to life of the author plus 70 years. The extended term would vest in either the original author, or, if rights 
have been transferred, in the transferee. All transfers on works created and fixed after January 1, 1978, 
are subject to termination generally after 35 years; " therefore, the extended term could be reclaimed 
by the author or his or her heirs. " 

The term for works made for hire, anonymous and pseudonymous works would go from a term 
of 75 years from the year of first publication or 100 years from the year of creation, whichever expires 
first, to 95 years from the year of first publication or 120 years from creation, whichever expires first 

2. Renewal term . 

For works which had secured federal copyright protection prior to January 1, 1978, the 1976 
Copyright Act retained the old system of computing the term with one major change: the length of the 
second renewal term was increased to 47 years. Under pre- 1978 law, copyright was secured either on 
the date a work was published or on the date of registration if the work was unpublished. In either case, 
the copyright lasted for a first term of 28 years from the date it was secured. The copyright was eligible 
for renewal during the 28th year of the first term. If renewed, the copyright was extended for a second 
term of 28 years. If not renewed, the copyright expired at the end of the first 28-year term. The addition 
of 19 yean to die second renewal term by the 1976 Copyright \a was subject to an author's right of 
termination. " 



" 17 U.S.C. §203. A work made for hire does not have a termination right under section 203. 

'* Currently, no transfers conceniing works created and fixed on or after January I, 1978, have aged the 
requisite 35 years to be subject to termination. 

" 17 use 1304(c). 

dirr\duncioii.loc 

July II. I99S 18 



180 



In June, 1992, Congress amended the law to make copyright renewal registration optional. "' 
As a result, works securing federal copyright protection between January 1, 1964, and December 31, 
1977, are automatically renewed on the last day of the 28th year unless the owner of the renewal right 
registered a renewal claim with the Copyright Office earlier in that year. 

Under H.R. 989, the second renewal term would consist of 67 years in place of the current 47 
years. In instances where the renewal right has been transferred, the 20 year extension under H.R. 989 
would pass to the transferee. In instances where the time period for exercising termination under section 
304 has already lapsed, there would be no additional opportunity to terminate the transfer. 

3. Sound recorriiny;^ fiW before Fe hTary '^1 '**^'^ 

For pre-February 15, 1972, sound recordings under section §30 1(c), the federal copyright law 
would preempt state law on February 15, 2067, instead of February 15, 2047. 

4. Works created but not published or copyrighted before January 1. 1978 . 

There is a special duration provision for works in existence but not published or copyrighted on 
January 1, 1978. '' These works were automatically given federal copyright protection beginning on 
January 1, 1978. The typical standards of life plus 50 years or 75-100 year terms generally apply to these 
works. However, all works in this category are guaranteed at least 25 years of federal copyright 
protection. The existing law specifies that in no case will copyright in a work of this type expire before 
December 31, 2002. If the work is published before that date, the term will extend another 25 years 
through the eixl of 2027. 



" Public Uw 102-307, 106 Stai. 264 (1992). 

" 17 U.S.C. §303. 

dirrVdunDon.loc 

July 11. 1995 19 



181 



a. H.R. 989. Under H.R. 989, the minimum term of protection guaranteed an 
unpublished work will be extended 10 years to December 3 1 , 2012. If the work is published by that date, 
the term is extended another 35 years to December 31, 2047. 

b. Cnmmmt pg proposed extension of section 303 . While the Copyright Office 
generally supports passage of H.R. 989, it does not endorse the proposed extension of section 303. For 
unpublished works created before January I, 1978, section 303 of the copyright law already provides a 
minimum copyright term running through December 31, 2002. Essentially, the works covered by this 
provision are works by authors who died before 1952 which remain unpublished through the year 2002. 

In his thorough analysis of copyright term, Sam Ricketson discussed the considerations involved 

with unpublished works and questioned whether they should be subject to temporal limits or be protected 

indefinitely until publication takes place. He mentioned two possibilities: to protect for the same term 

as published works and add no additional term if disclosure occurs subsequently or to allow protection 

indefinitely and then to grant a fiirther fixed term once the work is disclosed. Ricketson asserted that the 

disadvanuges to the public of the second approach may be cured if post-publication protection is 

relatively brief. " He also noted 

A more substamive objection, however, is that where 
ownership of the copyright and ownership of the 
unpublished work itself have become separated, this can 
place severe restraints upon later users, in particular 
those engaged in research and scholarship. " 

We believe that the unpublished works covered by section 303 have social, educational and 

historical significance. In the 17 years since the effective date of the 1976 copyright revision act, they 



" Sam Ricketson, The Copyright Term. 23 nC 776 (1992). 

" Id. at 776. 

dirrVdunDon-loc 

July II. 1495 20 



182 



have not been published. Extending the term will not benefit the copyright owners of such works; there 
are, however, broad public benefits to be gained when these works enter the public domain. Many 
institutions, including the Library of Congress, have photographs, letters and manuscripts that can and 
will be made available to the public. For example, the Library of Congress has a unified collection on 
the American composer Edward A. Mac Dowell (1861-1908). The rights in all of the material in that 
collection except his correspondence, can be cleared, and there is no way to locate the heirs of those 
leners sent to Mac Dowell. This collection is being prepared for distribution to the public in 2003; 
nothing would be gained by restricting such dissemination until the year 2013. 

m. ARGUMENTS FOR AND AGAINST TERM EXTENSION 

Although there was no pending legislation, the Copyright Office published an announcement in 
the Federal Register on July 30, 1993. that it would be conducting a study on copyright duration and also 
announced a public hearing to be held on September 29, 1993. In addition to publication in the Federal 
Register, the Copyright Office contacted user groups about the hearing. Perhaps because legislation did 
not appear on the horizon, only representatives who strongly supported increasing the term of protection 
appeared. They represented lyricists and composers, music publishers, and the motion picture industry. " 
The Copyright Office extended its comment period to ensure that all views would be heard. Later other 



" The National Music Publishers Association (NMPA) (Comments 1 and 99); Music Publishers Association 
(MPA) (Comment 2); Intemational Confederation of Music Publishers (ICMPXComment 4); Songwriters Guild of 
America (SGA) (Comment 6); David Nimmer (Comment 7); Wade Williams Productions (Comment 23); Nashville 
Songwriters Association International (NSAI) (Comment 24) Joint Comments of the Coalition of Creators and 
Copyright Owners (CCCOXComments 3 and 98). But s^ Comment 15 filed by the Recording Industry Association 
of America (RIAA). The RIAA is primarily interested im removing the "distinction between author's rights and 
so called neighboring ngbts...' and asserted that diere were far more pressing issues than duration. Id. at 3-4 

dirr\duranon.loc ?.• 

July 11, 199$ 21 



183 



views were presented primarily by users of public domain motion picnires and law professors. " All 
of these comments are considered in the discussion below of arguments for and against extension of 
Copyright term. 

Staff shortages kept the Office from completing this smdy, but we kept all of the materials and 
have made them available to the public on request. Moreover, we will be glad to provide a copy of the 
transcript of the hearing and comments should the subcomminee want them for the record. 

Having reviewed both sides of the argument presented to the Copyright Office in 1993 and those 
made before this subcomminee at the June 1 hearing on H.R. 989 in California, one can only conclude 
that the issue of term extension is more complicated than the sometimes oversimplified or overblown 
argtiments made on both sides would lead one to believe. Instead of an exhaustive retelling of those 
arguments, the Office has prepared a chan identifying most, if not all, of them. ^ We choose here to 
review the major arguments on term extension in light of the 1976 considerations that are still relevant 
and to evaluate other considerations. 



" One individual educator opposed term extension (Comment 5 1 ). Another commentator opposed extension 
because he felt it would cause great harm to the Gutenberg Project, which makes public domain works available 
internationally via electronic media. (Comment 83). A coalition group of law professors also opposed extension. 
(Commem 19). Sgs jIjs Comment 136, Society for Cinema Studies . Another individual commentator deplored 
not being able to put deteriorating materials on the Internet to promote public access. (Commeu 26). Some 
individual authors, producers, scriptwriters and filmmakers also opposed extension. §^ e.g., Comments 7S, 77, 
86, 128, 130 and 160. [All of the other commentaton who opposed extension were either those who want to use 
public domain motion pictures or warn to have access to these films]. 

** This chart is attached to die statement as an Appendix. 

dirrVdunooiLloc 

July 11, 199$ 22 



184 



A. REVIEW OF ARGUMENTS BASED ON CONSmERATIONS WEIGHED BY TfflS 
COMMITTEE IN 1976 " 



Four of the seven considerations that led the Judiciary Committee to conclude that copyright terms 
should be extended m 1976 are still relevant today. Each of them is discussed below with a brief 
summary and evaluation of the arguments on that particular consideratioa 

I. Public Bene fit and limi ted Times . 

a. Arguments . Many of the opponents arguing against term extension have raised 

the legal problems associated with removing property from the public domain. ** H.R. 989, however, 
does not propose applying term extension retroactively to restore copyrights in works already in the 
public domaia " Opponents also argue that term extension provides the public with no benefits and 
imposes substantial costs, " and freezes the public domain for 20 years. They assert that diminishing 
the public domain stifles creativity especially in the production of derivative works and they cite examples 
of contemporary works based on materials in the public domain. " Some opponents also assert that 



" S^ text at pages 9-1 1 supra for the complete text of these provisions. 

** Sm, e.^. Commenis 127, 123, 123, 121, 122 and 120. These and others reveal concerns about restoration 
of films under the North American Free Trade Agreement or any other law. 

" Some auibon' groups, however, will likely argue that this should be done, citing the recent restoration of 
foreign copyrights under the Uruguay Round Agreements Act or the North American Free Trade Agreement Since 
H.R. 989 does not prt>pose to restore works in the public domain, this staiemem does not address the host of 
complex policy issues raised by restoration of U.S. copyrights. 

" Sm Comments 8S and 97 at 8-9. 

** Sm Comment 19 'Comment of Law Professors on Copyright Office Term of Protection Snidy ' [hereinafter 
Comment 19 law professon]. Comment 1 1 (Fairness in Copyright Coalition) at 2 'We are concerned with NEW 
authors, NEW creativity, and the promotion of learning. New authors need a rich and diverse public domain to 
create and educate.' Id. Seg alss Comment 19. at 12; Comment 147, at 2; and Comment 148, a I. 

dirr^duntion loc 

July 11. 1995 23 



185 



term extension would violate the "limited times" provision of the copyright clause of the constitution 
which authorizes Congress to give rights for "limited times. " " 

Most of those who presented arguments to the Copyright Office in 1993 against the copyright 
term extension were small movie/film companies and coalitions who were concerned that adding twenty 
years to the copyrighted life of a work would deny access to the general public and constrict the creative 
efforts of those who use public domain materials in the creation of new works. They also argued that 
term extension would be detrimental to the preservation of twemieth century culture. They urged that 
extension will make a large portion of our motion picture heritage inaccessible. '' 

Proponents argued that extension of the copyright term will not affect the creation of new works 

and that there is no evidence that works created from public domain materials are any cheaper. They also 

argued such works may be of lesser quality. This argumeiu was made most forcefully by Irwin Karp 

during the revision that led to the 1976 Act: 

In fact, the advantage of the "public domain' as a device for making 
works more available to the public is highly overrated; especially if 
availability is equated with 'low cost' to the public In contrast with the 
fact that the prices charged the public do not necessarily come down, or 
the supply of the work increase, when copyright terminates — the paper- 
back book is evidence that copyright protection is not incompatible with 
mass circulation at low cost to the public ^ 



See Comment 19, at 10. 



' SSfi> SC-t Comment 17 (John Beltoo, Member Natioaal Film Preservation Board). Another argument this 
group made wu that films in tiie pubic domain are more likely to be preserved aod presented to the public than 
copyrighted works. They assert this is so because many holden of such films control the only available copy, which 
is often lost or destroyed, and almost never made available to the public. Extending the term or decreasing it will, 
of course, have nothing to do with whether the holder of the only available copy releases it. Sss g.g., Comments 
32, 29 and 28 deploring the fact that Mary Pickford wanted to destroy the negative copies of all of her early films. 
The Fairness in Copyright Coalition asserts that public domain distiibuton are waiting to release many silent movies 
and will not be able to do so for another 20 years if term is extended Comment 1 1, at 4-5. 

^ Copyright Law Revision, part 2 at 316-317. 

dirr\duniioa.loc 

July 11. 199S 24 



186 



Represenutives of songwriters stated that there is no savings for consumers where their works 
pass into the public domain because there is no reduction in price and that, therefore, only the creator 
loses. ' An independent distributor of motion pictures and television shows urged that it was not fair 
to penalize the creator and that "There is an effort by 'public domainers' that pirate motion picmres 
world-wide to obstruct the efforts to restore copyrights so they [can] use freely motion pictures without 
licenses from the owners." '* 

b. Evaluation . In evaluating any change to the copyright law, Congress must go 
back to the constitutional mandate. With respect to extending the copyright term two provisions must be 
considered: that copyright laws exist for the benefit of the public, and that copyright shall be for "limited 
times." 

(i) Public benefit. In the United States, economic and social effects of 
protection must be considered. The key is to promote creativity on the one hand, and to ensure maximum 
public access to this creativity on the other. One question raised is whether shorter terms inhibit 
creativity and the production of new works. The Copyright Office does not believe a case has been made 
that extension of the copyright term would diminish the creation of new works. To make such a case, we 
suggest comparing the experiences in countries with a shorter term to those with a longer term. 

Strong copyright laws foster rather than discourage the creation and broad dissemination of 
culniral works. Panicularly since copyright, unlike patent, only protects expression not ideas or facts, 
and a new author is free to use his or her own expression to create a different work out of the same 
public domain idea or facts. It is only when the new author appropriates the expression of the earlier 
author that considerations of copyright arise. Moreover, it has not been shown that the creation of 



•.. . '' See, e.g.. Comment 6 at p. 3. (George David Weiss, President, The Songwriters Guild of America). 
'* Sm Comment 23 (Wade Williams Productions). 



dirrvduraDonloc 

July n, 1995 25 



187 



derivative works decreased following term extension in 1976. In looking at the current entertainment 
industry, one sees a large number of remakes regardless of whether the work is based on a public domain 
work such as Linle Women or a licensed version of a more recent title such as the Broadway show, "How 
to Succeed in Business Without Really Trying." " 

Mainuining and enhancing the health of our copyright industries should be viewed as being in 
the public interest. Historically, Congress on numerous occasions has rejected the notion that thrusting 
works into the public domain premanirely is a positive thing, and the law has been amended many times 
to reduce this possibility. The 1992 amendment providing for automatic vesting of copyright renewal is 
a recent example. The Copyright Office believes the same principle applies to this term extension. 

There are some costs to term extension, however, and they must be weighed against the benefits. 
While it does appear likely that as a result of term extension, sonoe items may become more expensive, 
the impact on individual consumers should be minimal. ''* When it comes to choosing whether to protect 
authors or slightly decrease costs associated with making materials available, the balance should be in 
favor of authors. " 

(ii) Tjmitfd times. Unlike other countries which have no similar 
requirement, the United States Constitution provides that copyright shall be for "limited times." 
Determining what the appropriate term of copyright should be and what "limited times" means is 
extremely difficult There is no guidance — only the history of how Congress interpreted that mandate. 
Nor is the criteria to be used in deciding the term clear. 



^' Interestingly enough although opponents assert that 'It's a Wonderful Life' became popular because it went 
into the public donuun. 'Miracle on 34th Street' is equally popular and it is aoi in the public domain. 

' Companies wbich are dedicated to exploiting public domain material are affected by term extension. No 
matter what the term is, however, some works will enter the public domain each year. 

^ S^ Si. Barbara A. Ringer, The Demonologv of Copyright Second of the R.R. Bowker Memorial 
Lecnires New Series (New York 1974). 

dirr\duraDon-loc 

July II. 1995 26 



188 



The history of the United States and other copyright laws show that generally the term of 
protection has steadily increased. A fundamental assumption seems to be that the author and at least his 
immediate family should have the ability to earn some return on his work. Thus, even if the author ■ 
himself receives little remuneration during his lifetime, his spouse and children may receive some benefit 
later if the work has a delayed success, which often is the case with serious music. Whatever the term, 
one must also consider that the author frequently assigns his right to a publisher, film producer or other 
disseminator of the work. In such cases, the copyright in the work represents a protection for the 
investment that is undertaken in the publication or production of the work. Here the term granted must 
be sufficient to allow the investor time not only to recover but also to earn a reasonable renim on his 
investment. This is very difficult to estimate; different types of works and individual works within 
different genres may have varying levels of longevity and may reach a poiitt of profitability at different 
times. Another part of the equation is that there is a risk involved in publishing or producing work; 
successful ventures subsidize marginal works. Unfortunately, there are few relevant statistics to show on 
the average what a minimum term would be to make sure that a publisher or producer received a 
reasonable term on his or her investment Although protection of the investmem may seem far removed 
from protecting the author, in most cases authors' rewards are tied to the interests of those who exploit 
their works." 

In earlier debates of the 1909 Aa aiKl 1976 Act, Congress appeared to conclude that the copyright 
should benefit at least two generations. The legislative history refers to an author's family without 
specifically stating what constitutes a family. Samuel Clemens, an ardem proponent of a longer term, 
stated that he did not care about his grandchildren since they could take care of themselves, but that the 



'' S^ generally Ricketson, supra note at 320-1 . 

dirr\duration.loc 

July 11. 1995 _ 27 



189 



term should take care of his daughters. " On the other hand, the Berne Convention seems to have 
accepted the premise that a work should extend to the author and two generations, thus, to the 
grandchildren. The EU Directive on Term also mentions the author and two generations of heirs. 

In 1978 the United States adopted a term of the life of the author plus 50 years. This eliminated 
the possibility that an author might outlive his work. However, for the pre- 1978 copyrights, it added an 
extra 19 years; thus, making 75 years the longest possible term. Also, for these works, to obtain the full 
term, a renewal claim had to be made in the 28th year of the first term. 

In looking at the criteria used in the past, since some authors of pre- 1978 copyrights or their 
widows or widowers are outliving the cunent term, the 20 year extension would seem justified. With 
respect to works created on or after January 1, 1978, a longer term may be necessary to safieguard even 
one succeeding generatioa 

However, life plus 70 is an extremely long period of time, as is a term of 95 years from 
publication or 120 years from creatioa To reflect the balance intended in the Constimtion, Congress 
must make sure that works that are not being made available to the American public are still accessible. 
This is especially critical to smdents, scholars and researchers. Thus, if the term is lengthened, the 
concerns expressed from library associations in their July 11, 1995 letter to Mr. Moorhead must be 
addressed. '° One way to address some of these concerns is to create a limited exemption during the 
extra 20 years for nonprofit educational instimtions and libraries who provide materials that are directly 
related to nonprofit instructional activities. 



"' S« note supra al Proposal to Amend and Consolidate the Acts Respecting Copyright. 1906: Hearings on 
S. 6330 and H.R. 19853 Before the Joint Committees on Patents, 59th Cong., 1st Sess. 1 16 (1906) (statement of 
Samual L. Clemens, author). 

" See Letter from Robert Oakley, Washington Affairs Representative, American Association of Law Libraries; 
Carol Henderson, Executive Director, Washington Office, American Library Associations; David Bender, Executive 
Director, Special Library Association; and Carla Funil, Executive Director, Medical Library Association; to the 
Honorable Carlos Moorhead, Chaiman, Intellecnial Property Subcommine. House Judiciary Comminee (July 1 1 , 
1995). 

dirrVduradoiLloc 

July 11. 1995 28 



190 



Few would argue that a perpetual copyright term under federal law would be constitutional. 
Despite a history of over two hundred years of copyright jurisprudence, judicial authority on the meaning 
of the limited times" provision is scant. " In 1976 Congress believed that life plus 50 years did not 
violate the Constitutioa Consequently, the Copyright Office believes that H.R. 989 which proposes 
adding an additional twenty years is within reasonable bounds. " 

2. Increase in the Coro mTria f l.jfe of Copyrighted Property . 

a. Arguments . Opponents assert that most works already enjoy a term much longer 
than their commercial value and that adding an additional 20 year term will simply make it more difficult 
to create new works based on protected materials. " They argue that copyright is designed to protect 
living authors and to ensure new works are created. Users of motion pictures strongly urge that currem 
copyright owners do nothing in return for this extra copyright protection, that they feel no obligation to 
preserve the work, make it available to the public, or even to grant permission for archival showings, and 



" Perhaps the best judicial authority on the 'limited times' provision. United Christian Scientists v. First 
Church of Christ. 829 F.2d 1 152 (DC. Cir. 1987), is subjea to a number of different interpretations. In that case. 
Congress had enacted a private bill restoring and extending copyright in the writings of Mary Baker Eddy, founder 
of the Christian Science Church. Copyright in those writings was vested in a particular faaion of that church. The 
new copyrights established a duration of approumately 150 yean. In spite of the extraordinary duration, the D.C. 
Circuit Coun of Appeals did not invalidate the law on the basis of the 'limited timet' provision of the Copyright 
Clause, although the dictum did criticize the length of the term. Instead, the Court declared the stanite 
unconstimtional on the basis of principles of separation of church and state in the establishment clause of the First 
Amendment. 

" Another constitutional objection which may be raised is the failure of the public to secure a 'benefit' for 
the extended copyright in works already in existence. This argumem essentially seeks to reduce issue* of 
constimtionality to an inquiry over identification of specific public benefits for each individual copyrighted work. 
The copyright clause has never been interpreted in such a fashion. In appears reasonable to conclude that a longer 
revenue stream for copyrighted material is to the public good because funds become available for the creation of 
new works. Some may disagree with the length of the copyright term chosen by Congress, but the Constimtion gives 
Congress the right to decide this issue. When the 1976 Copyright Act was enacted. Congress specifically embraced 
longer terms for works already in existence. This decision was never challenged as unconstimtional. For these 
reasons, the Copyright Office believes consideration of term extension is well within die Constinitional powers of 
Congress. 

" Comment 19, at 4-6 (law professon); Comment 97, at 9-1 1 (CFPPA). 

dirr\dunaoaloc 

July 11. 1995 29 



191 



that, therefore, there can be no public benefit without public access. " Proponents assen that 
technological developments since 1976 have greatly increased the life of copyright property. They also 
note that some works may, through new uses, become hits late in life. " 

b. Evaluation . There is a great deal of anecdotal evidence on both sides. Obviously 
some works have a much longer commercial life than others. Some works have a very short commercial 
life, e.g., novelty items; others, such as computer programs, will have a relatively short life, while othen, 
such as music, may have a very long commercial life. Moreover, technological developments clearly have 
extended the commercial life of copyrighted works. Examples include videocassettes, which have given 
new life to movies and television series, expanded cable television and satellite delivery, which promise 
up to 500 channels thereby creating a demand for content, the advent of multimedia, which also is 
creating a demand for content, and the network phenomenon, i.e., the global information highway. 

The question is who should benefit from these increased commercial uses? Much creative effort 
and significant capital investment went into the creation of copyrighted works which now have an 
extended commercial life. It seems only fair that the authora and owners of these works should be the 
beneficiaries as long as the term of protection does not violate the limited times provision of the 
Constimtion. Increased income to publishers helps to subsidize the creation of new works, which is of 
bene^t to the public. Thus, as long as copyright owners take the increased income and use it for the 
public benefit, such as in the creation of new works, the constimtional goals are met 

The faa that many works have an economic life that is relatively short is not an argument in 
favor of a shorter tens. For such works a lengthy term of exploitation is immaterial. One of the 
commentators suggested there should be a different term for categories that do not require such lengthy 



" Comment 97, at 10 (CFPPA). 

" S«e Comment 6, at 2 (SGA). 

dirr\duraoonloc 

July 11. 1995 30 



192 



protection. '* In fact the Berne Convention does allow a shoner tenn for photographs, works of applied 
an, and cinematographic works. However, the United States, unlike some other countries, has never 
differentiated copyright term on the basis of the category of the work, and we are not advocating such 
an approach. 

Another concern that must be addressed and that is reflected in the letter of the library 
associations to Chairman Moorhead, is that where a work no longer is commercially exploitable, we must 
ensure that it is still accessible. '^ This is an issue today with our current terms of protection. It is an 
issue that would be made worse by H.R.989. Creative ways must be found to deal with this issue. 

Librarians, educators and historians have traditionally opposed any extension of the copyright 
term; however, library associations are not opposing this bill per se. No one is trying to deny economic 
reward to creators of works that are capable of and are being commercially exploited. Rather they are 
asking that their legitimate concerns be addressed. 

Ideas and facts are in the public domain, and fair use and certain exceptions allow students, 
patrons of libraries, scholars and researchers to make certain uses of copyrighted works. But as we move 
to a digital environment, it is unclear how all this will play out. Key issues today include preservation of 
materials in both facsimile and digital formats and guaranteeing access, including electronic access, to 
copyrighted works. 

There is a critical need to improve American education. Libraries, tike the Library of Congress 
through its National Digital Library efforts, are anempting to bring unique copyrighted materials to the 
American educational community. The Library of Congress has been diligent in seeking copyright 
permissions for its Digital Library projects. However, it is exceedingly difficult to determine the 



" Ricketson supra note 60. at 770-1. 
" See supra note 80. 



dirr\(lunaon.loc 

July 11. 1995 31. 



193 



copyright status of cenain types of works, e.g., photographs, prints and labels. Moreover, finding the 
current owner can be almost impossible. Where the copyright registration records show that the author 
is the owner finding a current address or the appropriate heir is extremely difficult. Where the original 
owner was a corporation, the task is somewhat easier but here too there are many assignments and 
occasionally bankruptcies with no clear title to works. 

Limited uses of older copyrighted material for instructional activities must be allowed. " With 
respect to libraries, guidelines could be worked out under section 108 as to what materials might be used 
without permission or paymem as long as the use was related to instiuctioiul activities in nonprofit 
educational institutions. 

There is a separate issue relating to facilitating licensing of copyrighted materials, especially 
where after a reasonable search the copyright owner caimot be located. A mechanism must be devised 
to resolve this problent In Canada, the Copyright Board, a govenunent organization, is given the right 
to grant a noi^-exclusive license for the use of previously published materials where the copyright owner 
cannot be fouixL A license is granted only if every reasonable effort has been made to find the copyright 
owner. Such a license, which will set the terms and conditions, such as the amount of royalties to be paid 



" There is also some confusion about what can be used. See, e.g.. Comment 39 where commentator asseru 
copyright registration kept him from using a 70'$ PBS series to learn sign language. 

(lirr\dundoa.loc 

July 11. 1995 32 



194 



and the license period, only covers use in Canada. " Apparently, Japan and Hong Kong have similar 
provisions. ^ 

Solutions to these problems might be forthcoming if the Subcommittee directed the panics to 
work these issues out. If the Subcommittee wishes, the Office would be most willing to try to facilitate 
this process. We believe we have considerable expertise in this area, and we would like to see these issues 
resolved. 

3. Fair Economic Benefit . 

a. Arguments . Opponents argue that the existing law already gives authors a 
sufficiently long term, and that even if there has been some increase in life expectancy since 1976, it 
would not warrant a 20 year extension of the basic term. They argue that the existing term is already 
long enough to take care of most authors and their heirs and that it should not be extended to cover a 
second, succeeding generation. They also assert that the longer term will not really go to authors, but 



" Section 70.7 of the Canadian copyright law provides as follows: 
OWNER WHO CANNOT BE LOCATED 

(1) Where, on application to the Board by a person who wishes to obtain a license to use a published works 
in which copyiight subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner 
of the copyright and that the owner cannot be located, the Board may issue to the applicant a license to do an act 
mentioned in section 3. 

(2) A license issued under subsection (1) is non-exclusive and is subject to such terms and conditions as 
the Board may establish. 

(3) The owner of a copyright may, not later than five years after the expiration of a license issued pursuant 
to subsection (1) in respect of the copyright, collect the royalties fixed in die license or, in default of their payment, 
commence an action to recover them in a court of competent jurisdictioit 

^ §^ e.g., art. 67 of the Japanese Copyright Code. 

dirr\dundoaloc 

July 11.1995 33 



195 



will benefit large corporations. " In panicular they assert that there is no need to increase the terms 
for works for hire which already enjoy a longer term than that proposed by the EU. " 

Proponents argue that the existing term does not cover life expectancies and two generations " 
and that a longer term is needed to give authors and copyright owners a fair economic benefit. " They 
note cases where the copyright expires while the author or his or her immediate heirs are still alive. They 
assert that the existing term is unfair since it does not account for the untimely deaths of some authors 
or for works by mamre authors. '' They also urge that the term should be longer to allow a reasonable 
return on economic investments. '* 

Furthermore, they assert that it takes a long time to recover astronomical production costs for 
books, films, plays, and computer programs and that they never recover costs on most of the works 
produced in these categories. " One author asserted that even in writing for a film fo: which he held 
no copyright, he could "couiu on the duration of the fllm owner's copyright which ensures that I am 
compensated for future exploitation of my work on television, videocassettes, and possible merchandising 
or publication, etc...." " 



" Comment 97 at S-8, 24 (The Committee for Film Preservation and Public Access). They argue that 
Corporaiions are not natural authors; therefoie, life expectancy is irrelevant for works for hire. Changes in 
generational age are meaningless in the context of film investments, which are either recovered quickly or not at 
all. Id. 

" See e.g.. Comment 18 ai I (Reel Movie International). 

" Comment 98 at 10 (CCCO Supplementary). 

" Ss generallv Comment 2 (MPAA); Comment 1 ^fMPA; Comment 3 (CCCO); Comment 4 (ICMP). 

" Comment I at 4, 5 (NMPA). 

•* Comment 4 at 3 OCMP). 

" S« Comment 2 at 2. 

" Statement of Michael Weller, Member of the Writers Guild of America, Los Angeles Hearing (June I, 
1995). 

dirrVduraooD-loc 

July II. 199S 34 



196 



b. Evaluation . Although it is clear that the existing term is long enough to take care 
of works that achieve commercial success early, most works do not fall into that category. As discussed 
earlier, a number of works, especially serious ones, may never recover what it costs to produce them. 
A number of authors may spend a great deal of their life working on books that never gamer much 
income. In order for authors to keep writing, they must be supported by publishers. In order for 
publishers to keep publishing these less popular authors, there must be sufficient reason to believe that 
they can recover their investments on other works. 

For these reasons, H.R. 989 would provide additional money that could be used to invest in works 
by untried authors or serious works. Dissemination of such material does benefit the public. 

4. Harmonization . 

Harmonization of national copyright laws provides "certainty and simplicity" in imemational 
business dealings. It also brings about a fairer and more equitable result. In 1976 the U.S. adoption of 
a term of life plus SO was a move toward international harmonization. At that point, life plus SO years 
was the standard in the Berne Convention, and the vast majority of countries had already adopted this 
term. Although there were countries that had longer terms, there was no significant movement 
internationally toward a longer term. Now there is such a movement, albeit limited at this time to Europe. 
a. Aryuments . Opponeius argue that the Berne Conveiuion and the GATT TRIPs 
agreement only require a term of life plus 50, and that this standard will not be raised without the United 
States. " Therefore, the United States should not increase its teniL Proponents of copyright term 
extension argue that the EU Directive on Term once again creates a significant difference in the term of 
protection in a number of important, industrialized countries. '°° They argue that the term should be 



" Comment 19, at 13 (Law Professors). 

'*■ Sec e.g.. Comment 99. at 7, 8 (NMPA). 

dirr'dunnonloc 

July II. 1995 ' • . 35 



197 



increased to match that mandated by the Directive, and they assert that this indeed will become the new 
standard. 

b. Evaluation of arguments . The Copyright Office believes harmonization of the 
world's copyright laws is imperative if there is to be an orderly exploitation of copyrighted works. In the 
past, copyright owners refrained from entering certain markets where their works were not protected. In 
the age of the information society, markets are global and harmonization of national copyright laws is, 
therefore, crucial. 

There has been a distinctive trend towards harmonization over the last two decades; however, the 
development of the global information infrastructure makes it possible to transmit copyrighted works 
directly to individuals throughout the world and has increased pressure for more rapid harmonizatioa 
This is reflected in the exercise to create a Protocol to the Berne Conventioa That exercise has been 
characterized as a norm setting exercise; the stated goals are to address important areas where application 
of the 1971 Paris Act is either imdear or the ituerpretation of existing obligations are the subject of 
dispute. 

As discussed earlier, H.R. 989 does not completely harmonize our law with the Directive on 
Term. In some cases, the U.S. term would be longer, in others the EU terms would be. These areas 
include, for example, the provisions for pre- 1978 copyrights and terms for anonymous and pseudonymous 
works and the EU provisions for cinematographic works as well as the limited cases in the EU where a 
corporate entity is a rightsholder. Moreover, in some areas, for example, sound recordings, our present 
term is already longer than that called for in the Directive. 

It does appear that at some point in the future the standard will be life plus 70. The question is 
at what point does the United States move to this term? If harmonization is a goal, adoption of the rule 
of the shorter term should be considered. This could put pressure on other couturies to raise their term 
of protection for sound recordings thereby leading to harmonization of the term for this type of work. 

dirr\duraDon.loc 

July II, 1995 36 



198 



B. OTHER CONSroERATIONS 

1. Rule of the shorter term . 

Finally, copyright term extension without adoption of the rule of the shorter term could lead to 
trade imbalances against the United States in every area of the world except Europe. This is because 
foreign works would be protected for the life of author plus 70 years, while U.S. works, outside of 
Europe, would be protected only for the life of the author plus SO years. Therefore, non-European 
foreign authors would receive copyright royalties for twenty additional years for use of their works in 
the United Sutes, while no offsetting royalties would be generated for U.S. works used in those 
countries. 

The Office is not taking a position on whether the United States should go to the rule of the 
shorter term. Adopting this rule may have benefits vis-a-vis harmonization and economic impact 
Others, however, have recommended that the United States should adopt this rule, and that, of course, 
will be your decision. '°' The Coalition of Creators and Owners provided us with information in 1993 
that indicated that 16 countries applied the rule of the shorter term and that at least two more would have 
to apply it in the future. "" 

2. TraiMfrrgq. 

The fact that copyright extension vests in transferees has been cited by opponents of term 
extension as another objection. Some argue that giving the extra term to assignees may be 
unconstitutional. 



'" See D. Nirnmer, Nation. Ehiration. Violation. Hanno ni^^ti<^^- An Intemational Coovright Proposal for the 
United States. 55 Law <Sc Comtemp. Probs. 211-4 (1992) (submitted as Coimnent 7). 

"" See Comment 98, at 7, 8 (Joint Supplemental Comments of the Coalition of Creators and Copyright 
Owners). 

dirr\(tunaon.ioc 

July 11, 1995 37 



199 



However, in 19''6 the copyright term for pre- 1978 copyrights was extended by 19 years. There 
was considerable debate as to who should be the beneficiary of those extra 19 years. Congress chose not 
to vest the rights in those extra years in the authors of those works. Instead, it created a mechanism by 
which authors could reclaim those rights from transferees — a right of termination. With respect to these 
works, notifications of termination have been received and recorded with the Copyright Office from 1978 
to present. '"' 

On balance, it seems that authors should be the beneficiaries of the longer term. '" Clearly 
the structure of the present law with the two termiiution rights covers most works. In these cases authors 
do have the opportunity to benefit from the additional years. In the case of pre- 1978 copyrights for 
which the right of termination has not yet vested, the right of termination would cover 39 years rather 
than 19 years. For new law works and for transfers that were made on or after January 1 , 1978 the law 
provides a right to terminate such transfers generally 35 years from the date of the transfer. Thus, for 
these works, the right of termination is available and authors and their heirs will have the right to benefit 
from the longer term. 

There is one category of works, however, where the author would not have the possibility of 
striking a new deal for the extra 20 years — works where the period to terminate has already passed. 
Congress may wish to consider the possibility of creating a new right of termination for these works. The 
Copyright Office has been recording documents concerning the termination of transfers siiKC 1978. Our 
experience is that the number of transfers for copyrighted works that are terminated is proportionately 
small when compared to the universe of copyrighted works that are subject to termination in any given 



"" Only 566 notices of termination were recorded in the Copyright Office between November, 1993 and 
May S, 199S. Of these, SSI were musical works. 

'** The Nashville Songwriters Association International (NSAI) Board of Directors indicated that while it 
wholeheanedly supported the possibility of extending the copyright term, 'it would oppose legislation directed 
toward this end should that legislation contain any extension of The Right of Termination.' Comment 24. 

dirr\duntionloc 

July II. 1995 38 



200 



year. By far the vast majority of tenninations involve musical works that continue to be commercially 
valuable. 

In considering the right of termination. Congress should examine the derivative work exception, 
especially as it relates to musical works, and the effect of that exception on authors and especially 
composers. The problem of small scale derivative works such afi musical arrangements versus large scale 
derivative works like motion pictures is fully set out in Mills Music. Inc. v. Snvder. 469 U.S. 153 (1985). 

Thus, there is a question as to who should benefit from the extension of the term. But this is a 
different question from whether the term should be extended. 

rv. CONCLUSION 

The rapidly expanding international market for copyrighted materials especially in light of the 
global information superhighway supports harmoniziiig national copyright laws and adjusting, where 
necessary, international copyright treaties. Indeed such haimonization is crucial. Harmonization as 
evidenced by the European Directive has many advantages including simplifying copyright transactions. 
Achieving harmonization will be difficult, but, as a major producer and exporter of copyrighted works, 
the United States should lead the effort 

Except for sound recordings, anonymous, pseudonomous, and collective works, the European 
Union has generally adopted a life plus 70 standard. Increasingly as countries revise their laws, the 
copyright term will be life plus 70; however, the United States does not have to move to life plus 70 at 
this time. It is not yet the iiuemational norm and clearly neidier the Berne Convention nor the GATT 
TRIPS agreement require more than life plus SO. 

That countries with copyright terms longer than life plus SO adopt the rule of the shorter term, 
which is clearly provided for in both the Berne Convention and die Universal Copyright Convention, 

dirrWunaoii.loc 

July II. IMS 39 



201 



should not be surprising. What we now have is at least 15 European countries, i.e., the European 
Community, imposing that rule as of July 1, 1995, although some member sutes may take a while to 
implement the requirements of the Directive on Term. Thus, if the United States does not go to the 
longer term, copyright owners will be denied money that they otherwise would be entitled to receive. 

One must also factor in what will be the cost of extending the term in the United States since this 
is the largest market for U.S. works. Unfortunately, there are no meaningful statistics to assist in 
determining the cost of extending the term and the benefits to be gained. Thus, on a pure economics 
analysis, at this point it would be difficult to support H.R.989. Congress could, to lessen the economic 
impact, adopt the rule of the shorter term, i.e., make the availability of extended term depend on 
reciprocity. This would be most helpfiil in the case of sound recordings where the U.S. extended term 
would be 45 years longer than the international norm. 

On the issue of the constitutionality of the term of protection. Congress decided in 1976 that life 
plus 50 years met the Constitutional requiremem of 'limited times." If life plus 50, which is a very long 
time, is constimtional, life plus 70 would seem to be constitutional. The question that we don't face here 
is what is the limit on "limited times?' 

The major poiius that lead the Copyright Office to support H.R. 989 are 1) the need to 
harmonize copyright terms throughout the world and the acceptance that life plus 70 will sometime in the 
future become the ituemational norm and 2) as a leading creator and exporter of copyrighted works, the 
United States should not wait imtil it is forced to increase the term, rather it should set an example for 
other countries. 

While the Copyright Office generally supports H.R. 989, we do oppose adding ten years to the 
term of the unpublished works covered by 17 U.S.C. 303. We believe there is also a question as to who 
the beneficiary of the extra 20 years should be especially in cases where there is no existing termination 
right. We also condition our support on working out solutions for libraries and educational instiwtions 

dl^^^dunaoaloc 

July II. 1993 40 



202 



that will address questions of preservation and access and also clarify the appropriate nonprofit 
educational uses that are beyond fair use. We have made several suggestions concerning how these issues 
can be resolved including adopting a system similar to the Canadian one for authors who cannot be 
located, developing guidelines under §108 for materials that can be used without payment for nonprofit 
educational purposes or perhaps excluding such uses from the extended term. Solutions to these problems 
would be more forthcoming if the Subcommittee directed the panies to work this out, and the Office 
would be willing to assist in facilitating agreement on possible solutions to the problems of preservation 
and access of older copyrighted works. 



dirrVduranoitloc 

July 11, 1995 41 



203 



AKGUMINTS nW AIGUMZNTS MiASNST 

TKADI BALANCX 1. A» » mi exfotm of i wrl l Tdi il proywty. at UniMd S<— I. iHua vnb ropaa to mac imlaluica in mm com|iici 

wcuM iofion Us tntt liilinri br ooRrriflC an tanHBa itia (kyaitf by p ro ixj n MM o( HX 9S9 wiuic us u S 

cnmatty caioTi a tBif« end* nrih*].»r» ji jueijecnul 
pnf«ty, aott of dii ■■***'«"^ invotvei coouaiponry 
vofti, SKfe M pofBlir auk, louotf r«co<ilui(i. axxioa 



Uodca SaM u a mxtd IcaMr la aJ ir yiilM imiiliin B)r ahcdy (br ifet aki oruatemr. Tbay (iid ooi a>oiid« 

iipfndiii(ourpniiaa»a«bea>,«aaBaiiitsattKcai^Bm or balaanaay of ikckcBn axcooaisio bt loponaa. 

u> mcnaaa mar oaoood Wnt of pnaaaio& IiaMaA of OBfty Uo«iig Omu i> vould ba bcair dor lai 

UniM Sam id aaa m aOamm id a fwirag a ma laa of 
ihi «aM ID nam ■ ifta Gurraa ioafaaiiaal nadaitf. 

HAMMMZATION 3. EaraaaOy ialifliorikDNnaaiGa bvBomMioaabaEaa- 3. HitmamBtlBmhimanmtMiMimffnfnmJiaam 

ml craciai: ikit ia OD l u i i| « a ^Haiioa of it b« arka& coapraaimi oitai | ■ ■ pnadftaa. Puntav. te 

Punta*. »T ■-■— i-'i aritt ita eU. «■ UniM SMm amM iob cmmoa prapoai* ia HX 9*9 voiM ooi miia U S. 

law niMfaiim wiik Ganpaa lain. Tba U S already 
excaade m Eufopaaa lada rt a Ibrarovta (brbut. Eaaa- 
oiH of HX 9M voiM oaly widaa im p^ 

Tte CMBaa !■■ of liib pm 50 yean providca autaoci 
«tt afflciaB iae^riaa B praduea. 

LO^N3■ UR/HEnS 5. SiacaihtfoaliaiDpnaataoiaBmaiofaaaatBf'ihaiia. 5. Tha bain of la miai aay aoi can eaouft lo aaure ibai 
copytifti dunttoa akoaM ba eaaadad id acaonodaH iba iba aitia'i *ott la Uft liiva. Tbc |o*l ibould ooi be u> 

iDcnaaa ia lift aayaOHsy aad m mad m«4 pospoaas mratd aa auKter'i gnnrtrtatiiTaD for tbt auibDr'i vorti; 

childbaanaf uai IMar ia lift. mtaar, tba gnadmUraa iboutd ba (onad lo vnic ibcu 

owaanrta. 

SERIOUS WOXKS 6. SiiiEaibapofalaa(yofnniaa«atia0«aaialaa(cy<iaa,aa* t. Govanoaa aibadiatioa of ibaaa spadal vorti lix iba 

^rl^■laapllllir^tn■a^d^re^«^o^of■^»»^l^tllall^lai^ila, potfic baaatt Bi(ti ba a baaar iJiaraaBvc lAu lana 

aaauttormay aothaaMalofaapibaaGoaDnicfawardafcrbia f nm i n a 

woit te Baav yaan a>K cnaooB, Tbaaa araita, itaa, iboaM 
(ciiba baafll of a loa|B danboK, 

LNEQUmS 7. Emamaafdanbnvillailrnmibiiaaqaibaacaaaadbytba 7. Tba lam it afeaady kia| aasufh u cover aicta oopuiaa. 

taaattf daam of loat iiabon (Joba Uaaoa), iha litiba of 
oaona bia ad pmbflc auibon (Laooaid l> a ni aiaia), tad iba 
ilcaiba of lUbDn wboaa wnta do on rasan* any innaina 
luol tfiar ibt tuiboc diaa. 



204 



ptRreTtTnr 

'. LOOTED 



*^3dT a>«iiaMe » cDe pubtac ttaa vorts ifl UK puMjc doinua. 
^A>t^KM( gunaaeo of excteswy -a aaoufaaunag lad 
Jianftuooo. a pttbtaslMr Witt oAea dectioe u} JTrea la cat puMi- 
aDoa oC a puMc dooaia work for feir ^f a se^emy juma- 
;s&ed L I pnn—r nan. The resuB a a ^eanb ^r quiity capia 
of BBay «octs after tftor fBfa of proceaioa bu uptnd. 



1 >3 iOon a ;enn tanm c&e autaor «>itbou gv-Mif any uMtta- 
uai acaedt u U!k pufibc The puOtK &cqueaily payi ctic afflt 
for »orts Ji ::x pbMic icaaia u i ic€t for »prnfaied 
•ore and :ae ooiy rout j a ■.■■<»■— ' ■ »«* vnia^ » ceruia 
UBn ac OK autaor's expcoM. 



Enenaoo of ;&» wm ^ ZO ; 
'ruKvort. ^~«v«d a Lsm ^ 3ioni r^tB of :&b 
WOK say ankTruai propcry saouid te veacri m per\ 
Ajiy fo ena o o (hm praMa-<^y dunooa vouM ba a ibd- 
ji ceepog v«ft ;Am vv« of aonl nfttt. 



P'jWk Jomain wofta are mporum c sx rresenauon of 
:«ea(ja& ;eflQu> outure ExiensKxi *o^Jd iurle poteniui 
^^ofTlpOe^ *oo fau uj oeum pemuiSion u? j&c :op*r joi- 
ed suunau. Oocumaxina and sducaoonai r'uma caxuioi 
3e sade *iiboui acceaiMc puMic Jemam luicnais. 
Thenfore. saoy ^mponaisvoftscAaiEu^eeducaucnaiaad 
;u&MXU JDporuace ^^ oUicr aoc ^e :nade x *m be 
oaccenbk u c&e pubdc EnnuOTo vUI ream .a aimoa 
^mpioc jBCcembdicy of a ^arfc pcxtwa of ovr iKXioa 
p^c&n fiemaie. 

TV oiomaie coaof 'xm exuasioa a patd by Jk coosuaser 
ji 'Jm fTCMer :ocu of Jk ^lU&Bd pnjdiKU. ^ ^opynftt 
cxtfaatoo *iil .-csuji <n ;Qon iKzosuif cooa for amuic aad 
51m. EjaeasoG poopooei <Jic uts u % tacfl *T}rts w^u go 
JBO UK puotic oooHxa. *tiK& puu ofTibc dauu *iiKti me 
«ofti ^tcooM caapcr to produce aad Suy 

t vioUiei ite L'tBted States coosuuDoael 
I. vtMca ipe a flc a iiy pre>^dei for a dflued mn of 
pnxecaoa. The purpov of ccpyn^ it aoc nmpty u 
provide lacooe (br wi&on aod creaion; nuser copynffit 
ibmM Mrvt ifte puAtac by acourifiai oe« cmuooa tad 



TTCHNOtOGY 



iift 11. Tte air« ■ atatfy taag caoufk ID I 



> tadtadMf oo^Bf^ IL CofpocMi imHv bem qdi 4oqb tayttnf id tneni as 
la tt croboa ori eacaaari ar^ Mevooooa pvan aad amc aidioi do 

oat pey lo piWHi^ kMocK fiboK. y«i tbay uuMiut t&e ooty 



ia« or aMBoyai. EaaaAag tanr axnopoty vshoia a cor 
xipoaaiac n^HaaaB to fc><V (&■ ^xxaf* '•tiMe vui ooty 
I of tfts pBfaOc record 



mUCtXfXITT 






■ oatyi audfUoflutvcoopaaa. 
an It* puMic EoMBoa pan Oi ndi or iHc puMk ui 

■). SimM QUBOBMEi. Kflcun. AOri aHJeoon 

>d •■ I llMMt ■. wHM ■ fev uif* 

iwB Ooaratt. Tbtra a oe public 



CREATTVl 
OEBIVATraN 



14. Co^vTifti d la 

fntaarrxj iM %•» aa 




puMe beoBM < lUsvi ararr* uen 
gtsKM paMc aaxB 10 iM ««t>. u< • lacraaa faiUie 
ezpoaK* n Oo >«tt (tor. taoaf oitar iteafi, educnooal 
u4 toaarca purpoaaa. Steaat offivnliMic; br :u] yean 
voald mfla 3<Km cflbnt. imile puoaf vorti ji Ja 
puMic teSBB vcttid eataaea creaBvvy ^ OKOiinfiag UK 



205 

Mr. GOODLATTE [presiding]. Thank you, Ms. Peters. 
Ambassador Barshefsky. 

STATEMENT OF AMBASSADOR CHARLENE BARSHEFSKY, DEP- 
UTY U.S. TRADE REPRESENTATIVE, OFFICE OF THE U.S. 
TRADE REPRESENTATIVE 

Ms. Barshefsky. Thank you very much, Mr. Chairman and Mr. 
Conyers. It's a pleasure to be here. 

I ask that my full statement be accepted into the record. 

Mr. GoODLATTE. And it will be. 

Ms. BARSHEFSiC5f. Our copyright law provides strong protection to 
the rights of American creators and artists. It also provides a flexi- 
ble market-responsive means of transferring and exploiting these 
rights. These two factors have enabled the U.S. copyright-based in- 
dustries to become the clear leaders in the creation and supply of 
informational materials and entertainment products around the 
globe. Consumers all around the world appreciate the quality of our 
films, music, books, and software. This enables our cop3nnight indus- 
tries to generate very significant positive trade flows for the United 
States. 

Recognizing the importance of the U.S. copyright industries in 
the U.S. economy and in our international trade, the Office of the 
U.S. Trade Representative has given very high priority to raising 
the level of protection afforded copyrighted works around the globe 
and of securing market access for these works. We will continue to 
pursue these objectives using a wide range of mechanisms. 

First, through bilateral agreements, particularly with countries 
that we have identified under the special 301 process as failing to 
provide adequate and effective protection of intellectual property 
rights — this is the mechanism, for example, that we have utilized 
most recently in connection with China. 

Second, through monitoring and enforcement of the ground- 
breaking Uruguay Round Agreement on trade-related aspects of in- 
tellectual property rights, the TRIPS Agreement. 

Third, through regional exchanges such as in APEC, the Asia Pa- 
cific Economic Cooperation Forum, and in the Americas through 
the free trade of the Americas process. 

And, last, through negotiating in the World Intellectual Property 
Organization, WIPO, the international rules needed to insure the 
protection of copyrighted works that will be transmitted over the 
global information infrastructure. 

Mr. Lehman will review for the subcommittee the full range of 
issues that the administration has considered in assessing H.R. 
989. In light of my agency's missions and responsibilities, I would 
like to focus on the international trade implications of the proposed 
legislation. 

Based on recent changes to the laws of the European Union 
member states, the passage of H.R. 989 would have a positive ef- 
fect on our balance of trade. The member states of the European 
Union are in the process of implementing the 1993 European Coun- 
cil directive to harmonize their copyright terms to 70 years. The di- 
rective requires member states to deny the increase in protection, 
to deny the additional 20-year protection, to foreign nationals of 
any country that does not also provide long terms to nationals from 



206 

the E.U. member states. The directive takes advantage of a rare 
reciprocity-based provision in the Berne Convention called the rule 
of the shorter term, which permits reciprocity-based extensions to 
the life-plus-50-year term required by the convention. 

In light of the differences in the terms of protection for certain 
works and rights in the U.S. and E.U. systems, some U.S. 
rightholders will be denied the extended term in the European 
Union if the U.S. term of protection is not also increased accord- 
ingly. I've detailed in my written testimony how U.S. rightholders 
would be affected in E.U. member States if H.R. 989 is enacted. 

In sum, the increase in the term of protection called for by the 
legislation will permit the creators of works that are not made in 
a work-for-hire context, such as independent writers, composers, 
playwrights, architects, painters, and sculptors, to enjoy a term of 
protection that is life-plus-70 years rather than life-plus-50 years. 
Additionally, the owners of certain works-for-hire, such as motion 
pictures, will enjoy the right to exploit the films in the EU member 
states for up to 20 years longer than the 75 years they now have. 

The countries of the European Union are a large and very afflu- 
ent market for U.S. copyrighted works. According to a number of 
our copyright industries, European accounts for more than half of 
their international revenues, and the reach of European law will 
extend to the E.U.'s neighbors to the east and south as they at- 
tempt to harmonize their legislation with E.U. standards to forge 
closer associations with the European Union. Given our large sur- 
plus in trade with Europe in copyrighted works, I'm confident the 
term extension in the United States will generate more revenues 
for the United States than it will cost us in outflows. 

Mr. Chairman, Mr. Conyers, one of the main trade policy objec- 
tives of USTR is to promote the establishment of legal and enforce- 
ment structures overseas that allow our intellectual property rights 
industries to exercise their rights in the intellectual property that 
they create. In that role, we're, of course, much more accustomed 
to commenting on changes in foreign laws than we are in comment- 
ing on changes on U.S. domestic law. Nonetheless, there is no 
doubt that H.R. 989 has international, as well as domestic, implica- 
tions. Its passage would have a positive effect on our trade balance, 
and USTR strongly supports its passage. 

I'd be happy to answer any questions the committee has on the 
international implications of the legislation. Thank you. 

[The prepared statement of Ms. Barshefsky follows:] 



207 

Prepared Statement of Ambassador Charlene Barshefsky, Deputy U.S. Trade 
Representative, Office of the U.S. Trade Representative 

I am pleased to have the opportunity to convey to the 
Subcommittee the views of the Office of the United States Trade 
Representative concerning H.R. 989, the Copyright Term Extension 
Act of 1995. 

There can be no question of the importance of strong 
copyright protection in promoting the creation and dissemination 
of works of art, literature, music, film, photography, drama and 
architecture. The laws of the United States afford strong 
protection to the rights of its creators and artists; our laws 
also provide for flexible, market-responsive means of 
transferring and exploiting these rights. 

This system of copyright protection has contributed 
immeasurably to the richness of our culture. It has also 
provided a firm basis for the development of a dynamic copyright 
industry that has made the United States a world leader in 
supplying informational materials and entertainment products 
around the globe. Because our films, music, books, and software 
are attractive to consumers around the globe, our copyright 
industries consistently generate a trade surplus for the United 
States . 

We must also recognize the importance of copyright 
industries to our economy. Our copyright -based industries employ 
thousands of workers in the United States and are employing new 
workers at almost three times the annual rat%Qf the economy as a 
whole. These U.S. industries contribute over >^*billion in 
foreign sales, more than any other U.S. industry except 
agriculture and aircraft, and are growing at twice the annual 
rate of the economy. 

Recognizing the significance of the U.S. copyright 
industries in our international trade, the Office of the U.S. 
Trade Representative, in conjunction with other U.S. Government 
agencies and the Commerce and State Departments, has given high 
priority to raising the level of protection afforded to 
copyrighted works around the globe, and to securing market access 
for these works. 

We negotiated the WTO Agreement on Trade-Related Aspects of 
Intellectual Property Rights (the TRIPs Agreement) which 
established strong international disciplines in an area of great 
importance to the U.S. economy and was one of the most 
significant achievements of the Uruguay Round. At the same time, 
we continue to make effective use of the Special 301 process and 
other bilateral channels to advance our goals. This year, we 
concluded a far-reaching agreement with China on the enforcement 



208 



of intellectual property rights, and on market access for those 
who depend on the exploitation of those rights. Our copyright 
industry arguably is the primary beneficiary of this combination 
of enhanced protection and market access. Among other things, 
the agreement required China to: 

-- take immediate action against those well-known factories 
producing huge quantities of pirated and counterfeited 
products; 

-- make structural changes to ensure effective enforcement 
of intellectual property rights over the long term, with 
coordination of enforcement efforts at the national, 
regional and local levels; 

-- prohibit the use of infringing products -- particularly 
computer software -- in government ministries; 

-- create a customs enforcement system modeled after the 
U.S. system; 

-- create a title verification system to help prevent the 
unauthorized production, importation||iexportation and retail 
sale of U.S. audio-visual works, 

-- allow U.S. intellectual-property related corfipanies to 
enter into joint ventures for the production, reproduction 
and distribution of their products within China. 

In some areas of the agreement, China has gotten off to a 
good start, with establishment of enforcement x.task forces, raids 
against computer software pirates, action against CD-ROM piracy, 
and issuance of new regulations. At th^ same time, we recognize 
that piracy remains a serious problem in China, and that we must 
keep up the pressure on China to implement the agreement 
effectively. USTR has established an Executive Secretariat, with 
private sector participation, to collect and analyze information 
on China's implementation of the agreement, and to coordinate 
training programs. A high-level USTR team plans to visit China 
for consultations under the agreement in late July. 

In April 1995, to address the uncontrolled piracy of U.S. 
sound recordings in Bulgaria, we reached a detailed agreement 
with Bulgaria on the protection of U.S. copyrighted works. Under 
that agreement, Bulgaria signed on to the Geneva phonograms 
Convention, amended its laws to make copyright infringement a 
criminal offense, and committed itself to put into place a 
copyright verification system. 

Also in April, to address the rampant piracy of U.S. 
copyrighted works, particularly computer software, in Indonesia, 
we secured a commitment from the Government of Indonesia to 
undertake significant efforts to fight copyright piracy. 



209 



In the coming years, we will use existing multilateral 
mechanisms, such as the TRIPS Agreement, and bilateral 
mechanisms, such as the Special 301 of our Trade Act, to combat 
the piracy of U.S. copyrighted works. We will also work on a 
regional basis --in Asia and in the Americas --to seek better 
IPR laws, and to ensure that these laws are enforced. Finally, 
we will work with other agencies in the U.S. government to 
negotiate with our trading partners the international rules that 
will be needed to ensure the protection of copyrighted works that 
will be transmitted over the Global Information Infrastructure. 

It is against this backdrop that I will assess the impact of 
HR 98 9. 

It is clear that there are numerous factors and interests to 
take into account in determining whether a copyright term 
extension of 20 years is in the overall interests of our country. 
Many of the domestic issues connected with this decision lie 
outside the competence of the Office of the United States Trade 
Representative. We are therefore reluctant to insert this Office 
into a discussion of the full range of questions that the 
Subcommittee has before it. 

The focus of this statement, rather, will be on the 
implications for our trade balance of an extension of the 
copyright term. '- 

It is impossible to talk about those effects without taking 
note of the fact that less than two weeks ago, the European Union 
implemented a decision, taken in 1993, to harmonize its copyright 
term at life plus 70 years. This means that all members of the 
European Union, with the exception of Germany (which already had 
a term of protection of life plus 70 years) had to extend the 
term of protection that they provide to their own copyright 
holders, and to copyright holders from the other member states. 

Unfortunately, the members of the European Union are under 
no international obligation to extend this longer term of ■• 
protection to U.S. right holders, or to right holders from any 
other country that does not provide a reciprocal term of 
protection to works of European authorship. The so-called "rule 
of the shorter term" in Article 7(8) of the Berne Convention 
permits member countries to limit the term granted foreign 
origin-works to the term of protection provided in the country of 
origin. In other words, Berne member countries are permitted to 
provide terms in excess of that required by Berne -- generally 
life plus fifty years -- to nationals of other Berne member 
countries on the basis of reciprocity rather than national 
treatment. The EU directive, taking advantage of this rare 
reciprocal provision in Berne, requires member states to apply 
the rule of the shorter term to non-EU nationals, except in 
certain narrowly defined circumstances. 

As a result, U.S. right holders will not be able to take 



210 



advantage of the longer term of protection in EU member states if 
they are s\ibject to a shorter term in the United States. Because 
some works protected under U.S. law already receive a longer term 
of protection than in the EU system, the longer terms provided by 
this legislation will have no effect on the term of protection 
they receive in Europe. Other U.S. works, however, are currently 
provided a shorter term of protection than in Europe, so will 
receive a longer term if the U.S. term is extended. 

In the U.S., works whose term is measured from the life of 
the author -- where the work is created outside an employment 
relationship and the author is known -- are currently granted a 
term of protection of the life of the author plus fifty years. 
If the U.S. term is modified to life of the author plus seventy 
years, these authors or their assigns will enjoy a longer term of 
protection in the EU member states. As a result, paintings, 
books, sculptures, plays, architectural drawings and other such 
works would enjoy twenty more years of protection in EU member 
states if H.R. 989 is passed. 

On the other hand, works made for hire are protected under 
current U.S. law for a term of seventy-five years from their 
publication or 100 years from their creation, whichever expires 
first. Right holders in works subject to this rule, such as the 
producers of sound recordings and films, currently enjoy a term 
of protection twenty five years in excess of that pr'ovided by the 
EU system, which is fifty years from first publication or 
communication to the public. Because the maximum term of 
protection for producers of sound recordings and films in the EU 
system is fifty years, increasing the work for hire term in the 
U.S. to ninety five years will have no effect ^on the term they 
are granted in the EU system. As I will now explain, however, 
there is a means through which U.S. filni producers would benefit 
in Europe from term extension in the United States. 

If H.R. 989 or similar legislation is adopted, right holders 
in some U.S. works made for hire will be able to exploit these 
works in EU member states for up to twenty years longer than they 
can under the current system. The contracts under which these 
works are created typically permit the person for whom the work 
is created to exercise all economic rights granted to the actual 
creator of the work throughout the world. In the case of films, 
for example, directors are considered the authors under the EU 
system and are given a term of protection of life plus seventy 
years. These rights are in addition to, and more expansive than, 
those rights granted directly to the producer that I just 
mentioned. But pursuant to the contracts under which U.S. films 
are made, all rights granted to the directors of the films by EU 
member states are exploited by the producers of U.S. films. 

The term of protection granted directors of U.S. films in 
the EU system, however, is capped by the term granted the film in 
the United States. Currently, then, the life plus seventy year 
term they are granted in the EU system is capped by the seventy 



211 



five year term granted in the United States. if the U.S. work 
for hire term is extended to ninety five years, the term of life 
plus seventy years granted directors of U.S. films in the EU 
system would be capped at ninety five years rather than seventy 
five years. Directors of such films would therefore receive -- 
and the producers who hold their rights would therefore enjoy -- 
up to twenty years more protection in EU member states, depending 
on the life span of the director. 

Consequently, if the U.S. extends its copyright term in 
accordance with this legislation, some U.S. right holders will be 
able to collect revenues from the exploitation of their works in 
Europe for up to an additional 20 years. 

The countries of the European Union are a large and affluent 
market for U.S. copyrighted works. The population of the member 
states of the EU - - ever increasing in number -- is now nearly 
370 million. Moreover, the reach of EU legislation will expand 
even further in the coming years. Turkey, for example, has just 
enacted legislation to raise its copyright term for newly-created 
works to life plus seventy years. It is unlikely that Turkey 
would have done so were it not for the need to meet the standards 
of EU protection of intellectual property rights as part of the 
obligations it took on in concluding a Customs Union agreement 
with the EU. The countries of east-central Europe are also 
moving in the direction of harmonizing their legislation with EU 
standards as they move toward eventual membership in the 
Community. 

Given the preponderant balance in the U.S. favor in US-EU 
trade in copyrighted works, an additional 20 years of copyright 
protection on both sides of the Atlantic would add more to the 
revenue flows headed from the EU to thej^U.S. than it would to the 
monies we would be required to pay out to Europe. While the 
Administration has not undertaken the complex process of 
quantifying the precise extent of these benefits, the Motion 
Picture Association estimates that term extension would result in 
a modest increase of revenues from international sources of. less 
than $1 million per year by 2000, and $3 million per year by 
2010, rising more dramatically to $160-200 million by 2020. One 
of our two major music collecting societies estimates additional 
international revenues of $14 million per year if U.S. right 
holders are in a position to take advantage of a further 20 years 
protection in Europe. 

In view of the international benefits to U.S. rights holders 
as a result of copyright term extension as proposed by HR 98 9, 
the Office of the United States Trade Representative supports the 
proposed legislation. 



212 

Mr. GOODLATTE. Thank you, Ambassador. 
Commissioner Lehman, welcome. 

STATEMENT OF BRUCE A. LEHMAN, ASSISTANT SECRETARY 
OF COMMERCE AND COMMISSIONER OF PATENTS AND 
TRADEMARKS 

Mr. Lehman. Thank you very much, Mr. Goodlatte. 

In the interest of efficiency and since I know that everyone has 
a lot of other things to do today — I will attempt to be extremely 
brief, particularly in view of the fact that this is not really a com- 
plicated subject. I would like to begin by apologizing for the Admin- 
istration getting its testimony to the subcommittee so late. How- 
ever, it seems as if we were all on the same wave length an3rway. 
In fact, if Government works were cop3n'ighted, the administra- 
tion's opening statement might be an infringement of the chair- 
man's opening statement. [Laughter.] 

So it's quite clear that he understands what the issues are, and 
I think that the other members of the committee do too. 

I think you will find unanimity among the three witnesses that 
the principal reason for making this change is that it will enable 
us to harmonize with the European Union, our largest single mar- 
ket for copyrighted works outside the United States. In fact, in 
some cases it might even be larger than the United States. 

The Register of Copyrights, Ms. Peters, was correct when she 
suggested that this legislation would have an immediate impact, a 
very near- term impact, on works between 1920 and 1940. If we just 
think a little bit about that period of time, that was a period in 
which America's copyright industries really came into global domi- 
nance. There is a great deal of material that will have great com- 
mercial value on an international scale. I think it is fair to say 
that, with the passage of this legislation, there will be considerable 
revenue flowing into the United States because of the capacity to 
continue to exploit these works. 

Now that does have an impact on creativity in the United States 
because much commercial creation — in fact, almost all commercial 
creation — is funded by commercial enterprises. This day and age of 
the information superhighway, and so on, it requires considerable 
financial resources to get product out to the public, particularly on 
the global scale. The extension of the copyright term will provide 
commercial copyright-based industries with the capacity to do that. 

In the course of considering this legislation within the adminis- 
tration, we considered a number of very specific cases. We had 
some experience with this because we restored cop3rright protection 
to some works that had fallen into the public domain as a part of 
a NAFTA implementing legislation. There is some evidence, that 
the restoration of copyright protection under the NAFTA legislation 
actually encouraged industry to make available to the public in 
new editions, and much finer editions, works which otherwise 
would have remained moldering in the library. So on balance, we 
agree that there is a great deal of merit in this legislation. 

I'd just like to say a word about the concern that works will not 
go into the public domain. Obviously, that's always a concern, but 
there's very little evidence that as a practical matter that will work 
a hardship on Americans or American industry in any way. In fact, 



213 

there's very little evidence, for example, that the consumer pays a 
great deal less for published works, which are in the public do- 
main, versus published works which are copyrighted. If you go to 
a bookstore, the prices tend to be comparable. So in our view, there 
is relatively little down side to this legislation and it will definitely 
provide additional revenue for one of America's fastest growing in- 
dustries. 

I'd just like to make one final point. It isn't in our written testi- 
mony, but I would like to comment on the Register's concern about 
section 303 and the term extension works that were unpublished 
prior to 1978. I'd just like to remind the committee that prior to 
1978 unpublished works enjoyed common law copyright protection 
and virtually have perpetual protection and never would have gone 
into the public domain. So the additional period does not strike me 
personally as being an extensive additional period of time. There- 
fore, I can say that the administration, without reservation, sup- 
ports the Chairman's bill in its entirety. 

[The prepared statement of Mr. Lehman follows:] 



214 

Prepared Statement of Bruce A. Lehman, Assistant Secretary of Commerce 
AND Commissioner of Patents and Trademarks 

Mr. Chairman and Members of the Subcommittee: 



Thank you for this opportimity to appear before the Subcommittee to testify on 
H.R. 989, the Copyright Term Extension Act of 1995. The bill would extend the term 
of copyright protection in all copyrighted works that have not fallen into the public 
domain by twenty years in an effort to conform U.S. copyright law with the 
copyright laws of the European Union Member States. 

Since the first Federal copyright law in 1790, the term of copyright protection has 
steadily increased. In 1790, copyright protection was granted for an initial term of 14 
years from the date of publication plus an additional 14-year renewal term if the 
author was still living when the original 14-year term expired. In 1831, the length of 
the original copyright term was increased to 28 years (with a 14-year renewal term). 
Then, in 1909, the length of the renewal term was increased to 28 years (for a total 



215 



term of 56 years). Finally, effective in 1978, the length of the copyright term was 
increased so that copyright protection would last either from the time the work was 
created until fifty years after the author's death or, where the length of copyright 
protection is not measured by the author's life under the 1976 Copyright Act, 75 
years from first publication or 100 years from creation, whichever is shorter. Now, 
with the introduction of H.R. 989 an increase in the term of copyright protection is 
being considered by Congress once again. 

Each time the term of protection was increased in the past, there appeared to be 
ample justification for increasing the term. Although today the need to increase the 
copyright term is not as pressing as it was in 1831, 1909 or 1978, there are several 
reasons that a copyright term increase may be warranted. Most notably, the bill 
would provide U.S. copyright owners benefits in other countries and in 
international fora. Accordingly, we support the twenty-year extension of copyright 
protection as proposed in H.R. 989. 

The primary reason for changing the copyright term by twenty years would be to 
bring U.S. law into conformity with that of the European Union. The European 
Union (EU) passed a directive that, inter alia, requires each EU Member State to 
provide copyright protection for a term of life-plus-seventy years by July 1, 1995. A 
provision in the EU Directive explicitly requires each Member State to implement 
"the rule of the shorter term," which prohibits any EU Member State from 
protecting a work originating outside the EU for the entire life-plus-seventy years 
term uiUess the country in which the work originated also provides for a term of 
life-plus-seventy years. Thus, U.S. copyright owners will only be protected for a 
term of life-plus-fifty years in the EU, while their EU coxmterparts will be protected 



216 



for a term of life-plus-seventy years in the EU - unless the U.S. copyright term is 
extended. 

If the United States extends the copyright term to life-plus-seventy years as proposed 
in H.R. 989, the EU Member States would be required to protect U.S. works for the 
life-plus-seventy years term. Thus, an extension of the copyright term as proposed 
in H.R. 989 would serve the dual purpose of providing U.S. copyright owners with 
extended protection in the EU as well as in the Uiuted States. This would benefit 
the copyright owners of many U.S. works by allowing them to exploit their works in 
the EU and the United States for an additional twenty years and reap the rewards 
therefrom. 

For many other U.S. works the copjoight owner will get the benefit of the entire 
copyright term in the EU regardless of whether the U.S. copyright term is increased. 
For instance, the term of protection in the EU for sound recordings under the EU 
Directive is 50 years from publication or creation, while the term of protection in the 
United States for soimd recordings is 75 years from first publication or 100 years 
from creation, whichever is shorter. As the term of protection in the United States 
for soimd recordings is already greater than the EU grants those works ujider the 
Directive, the EU Member States could not apply the rule of the shorter term to 
sound recordings and the EU Member States would be required to protect U.S. 
soimd recordings for the entire EU term of 50 years from publication or creation. 
Even though U.S. sound recording producers would not benefit directly in the 
European Union from a copyright term exterision as proposed in H.R. 989, sound 
recording producers would still benefit in the Uruted States by getting an additional 
twenty years in which to exploit their sound recordings in the Uruted States. 



217 



Extending the term of copyright protection by twenty years may also benefit the U.S. 
economy and, in particular, the U.S. trade balance. Last year, the U.S. copj^ght 
industry contributed approximately $40 bilhon in foreign sales to the U.S. economy. 
Since the United States is a net exporter of intellectual property products to the 
European Uiuon and an increase in the U.S. copyright term would extend the 
copyright term for U.S. works in the European Union, an additional twenty years of 
protection would likely increase the trade balance of the Uiuted States in the long- 
term. 

Having established that extending the copyright term as proposed in H.R. 989 
appears to offer some short and long-term advantages for U.S. copyright interests, it 
should be pointed out that the U.S. copyright-based industry and the public might 
benefit even more if the Europecin Uruon eind United States were to harmonize our 
copyright laws in other areas as well. There are numerous differences between the 
U.S. and EU copyright laws and many benefits may be had by the U.S. copyright- 
based industry and the public from extending the copyright term as part of a 
comprehensive harmoiuzation agreement with the European Union. 

Those that oppose H.R. 989 suggest that the public will be harmed by a copyright 
term exterision. These individuals suggest that works will be cheaper and more 
widely available once the work falls into the public domain and that the public will 
be deprived of these benefits for an additional twenty years if H.R. 989 is enacted. 
This contention may be true in theory, but in reality it may have little significance. 

Once a work falls into the public domain there is no guarantee that the .work will be 
more widely available or cheaper. In fact, there is ample evidence that shows that 
once a work falls into the public domain it is neither cheaper nor more widely 



218 



available than works protected by copyright. One reason quality copies of public 
domain works are not as widely available may be because publishers will not 
publish a work that is in the public domain for fear that they will not be able to 
recoup their investment or earn enough of a profit. 

There is also no evidence that once a work falls into the public domain that the 
work will be less expensive than its copyrighted coimterpart. In fact, the public 
frequently pays the same for works in the public domain as it does for copjoighted 
works. Thus, the public may benefit little from a shorter term. The only parties that 
benefit from a shorter term are the parties who exploit public domain works. An 
argument could be made that these individuals are not deserving of the commercial 
windfall from a shorter term as they have not created any new works for the 
public's benefit. If anyone is deserving it is the copyright owners because they or 
their assignors are the ones that have taken the time and effort to create new works 
for the public to enjoy. 

Opponents of H.R. 989 also suggest that an additional twenty years of protection as 
proposed will not be sufficient incentive to increase the number of works created. 
They contend that an author would create a new work regardless of whether the 
term is life-plus-seventy years or life-plus-fifty years. We believe that this 
contention misses the point. It is imlikely that an author would create a new work 
solely because the term was life-plus-seventy years but that very same author would 
not create a new work because the term would be only life-plus-fifty years. This, 
however, does not mean that the potential of greater rewards provided by a 
cop3Tight term extension would not be an incentive for some authors to create more 
new works for the public to enjoy. 



219 



Granting a copyright term extension as propose in H.R. 989 would provide copyright 
owners with an additional twenty years in which to exploit their works. The 
additional twenty years will enable copyright owners to increase the exposure of 
their works. This would result in greater financial rewards for the authors of the 
works, which will in turn, encourage these authors to create more new works for 
the public to enjoy. 

In the past. Congress has foimd it necessary to change the copjrright law to adjust to 
economic, social jmd technological changes. We are already immersed in a 
technological revolution that demands we take a close look at our copyright regime 
and once again alter our copyright laws to keep pace with these technological 
changes. As we speak, we are at the dawn of the digital age which is generating 
unprecedented new challenges and opportunities for the copyright world. Congress 
and the Administration are presently addressing many of these challenges. For 
instance, there are two bills pending before Congress that would give a limited 
performance right in sovmd recordings disseminated by digital means. 

Similar to the two performance rights bills, H.R. 989 also recognizes the sigiuficance 
of adequately protecting digital works. Granting a twenty-year copyright term 
extension will encourage copyright owners to restore and digitize works that are 
about to fall into the public domain. This will ensure that many celebrated works 
are preserved so that future generations can enjoy quality copies of these works. 
Without a copyright term extension, copyright owners will have little incentive to 
restore and digitize their works. If many of these works are not restored, they might 
deteriorate over time and our children would be unable to enjoy these works as we 
have. 



220 



Increasing the copyright term may also help to reaffirm the role of the United States 
as a world leader in copyright protection. By taking the lead, and increasing 
protection in the United States, we encourage our trading partners to follow our 
lead and increase the term of protection. If other coimtries increase their term of 
copyright protection, then U.S. copyright owners will be able to increase the rewards 
they receive for their works by exploiting their works in these countries for a longer 
period of time and therefore, they will have more incentive to create new works for 
the public to enjoy. 

The United States has been and will continue to be a leader in the copyright field. 
We have gained this reputation for leadership in this area by providing strong 
copyright protection and by making well-informed, justifiable changes to our 
copyright law as necessary to keep pace with changes in society and technology. As a 
result of the strong protection afforded by our copyright law, the U.S. copyright 
industry has become one of the largest and fastest growing parts of the U.S. 
economy. The U.S. copyright industry contribute more to the U.S. economy than 
any other manufacturing industry and comprises almost four percent of the 
nation's Gross Domestic Product. Further, the annual growth rate of the core 
copyright industries has been more than twice the growth rate of the whole 
economy. This success resulted only after making changes in our copyright policies 
and practices after careful consideration of all the factors. 

After careful consideration of aU the factors, the Administration supports H.R. 989. 



221 

Mr. MOORHEAD [presiding]. Well, thank you all very much. 

I'm sorry I couldn't be here for all of your testimony, but I've got 
two markups going at the same time. I can't be every place at once. 

Mr. CONYERS. Commissioner Lehman was exceedingly brief this 
morning. [Laughter.] 

I wanted you to know that. 

Mr. MooRHEAD. Does the ranking minority member of the full 
committee have questions of this panel? 

Mr. CONYERS. I don't. I was going to ask Ms. Peters to give us 
some ideas about what the legislative suggestions she made would 
look like, but, as usual, Bruce Lehman's talked me out of whether 
we really want to make those changes or not. 

You know, what — this is a really big business going on here, and 
I'm still provincial enough to wonder about the little guys and how 
we can continue to expand their interests and their protection. I 
mean, even though we are proud of our culture and support all the 
music and the movies and the record-playing, and so forth, some 
of the creators have received short shrift in the past, and we're try- 
ing to bring our society out of that. 

And to the extent that while we're looking at these measures 
that we can keep remembering some of the jazz musicians that 
were overlooked in a different era and other contributors, that 
would be my concern. And if any of you have any comments about 
that, I'd be delighted to entertain that. 

Ms. Peters. I'd like to respond on the point that I made, which 
is that the way that the law was put into effect, which Mr. Lehman 
pointed out, was if the work was unpublished, it was protected per- 
petually, and those works came under the Federal law on January 
1, 1978. The law gave them a 25-year term of protection, and if 
they were published in that 25 years, 25 years more. 

What I'm talking about are photographs, letters, manuscripts 
from 1780, 1790, 1820 which have not been published in the 17 
years since 1978, where a number of institutions have been prepar- 
ing them for distribution to the American public. We're not talking 
about any of the works that have commercial life and where a pub- 
lisher has taken them and published them. Where those works 
have been published, we support the additional term. So we're real- 
ly only talking about the works that are sitting, that have seen no 
use, and in the 17 years since the passage of the law nobody has 
published them; I don't think that much music is in this category. 
I think it's mostly photographs and letters, the kinds of things that 
historical societies basically collect. 

Mr. CoNYERS. Commissioner, does that accommodate some of 
your reservations on that point? 

Mr. Lehman. Well, I don't think that this is an earth- 
shatteringly significant subject, but I wanted to point out to the 
committee that, until 1978, these works, even if they may have 
been created in 1820, enjoyed perpetual copyright. There is an ar- 
gument that one of the incentives to disseminating works to the 
public is to provide some kind of exclusivity to a publisher who is 
able to obtain those rights. 

So I think there are two sides to the matter. The question is: 
would some kind of eleemosynary organization be encouraged to 
disseminate works by virtue of not having to clear any rights, and 



23-267 96-8 



222 

thus, be more likely to make the work available, or would a com- 
mercial organization, who might be spurred by rights have the in- 
centive to get the works out? 

This wasn't just something we considered in my office; every sin- 
gle department of the administration with any involvement in 
this — the Justice Department, the U.S. Trade Representative, the 
Education Department, and others — support this view. On balance, 
we felt that the commercial incentive of the additional period of 
time warranted supporting the legislation above and beyond even 
the international implications. 

Mr. CONYERS. Now my colleague, Mr. Sensenbrenner, had ob- 
served that his legislation should be reported out or given the same 
contemporary consideration that the measure before is, and it was 
my impression that all of that work was in negotiations and that 
the negotiations weren't as hopeless as they were referenced this 
morning. And I was just wondering, does anybody have any update, 
any late flashes that we could be apprised of here? An3^hing you 
can tell us 

Ms. Peters. Well, the only part that I know is that negotiations 
are ongoing and that we would hope to see them continue. Person- 
ally, on similar legislation a year ago, I wrote to the then commit- 
tees basically opposing that kind of legislation. The complaint 
seemed to be with business practices rather than the way that the 
performing rights were handling the rights that is rather than with 
the extent of the rights. I'm somebody who feels very strongly that 
narrowing the rights with respect — it's called section 110(5)— would 
violate our international treaty obligations and would send exactly 
the wrong signal to the rest of the world. 

Mr. Lehman. The Register has put her finger on something 
that's extremely important. We already have enough compulsory li- 
censes in U.S. copyright law, and enough difficulties attempting to 
harmonize on a global basis where it is to our benefit on this basis, 
I think that Mr. Sensenbrenner's legislation would be ill-advised. 
However, I don't know that we've cleared that position in the ad- 
ministration. If you have a hearing on it, I'm sure that we will be 
able to offer more comprehensive testimony. 

It's important to understand that the performing arts societies 
are — or at least ASCAP is currently covered under a Justice De- 
partment antitrust decree and we have a long history of antitrust 
regulation. Further, as Ms, Peters points out, the appropriate way 
to deal with business practices that are alleged to be anticompeti- 
tive, is through antitrust law, rather than mixing competition prin- 
ciples with the basic copyright law. 

Mr. CONYERS. Ambassador, any comments on the above? 

Ms. Barshefsky. No comments. 

Mr. CONYERS. OK. Thank you very much, Mr. Chairman. 

Mr. MOORHEAD. The gentleman from Virginia, Mr. Goodlatte. 

Mr. Goodlatte. Thank you, Mr. Chairman. 

I don't have any questions at this time. I do very much support 
this legislation. I think the witnesses have all very articulately 
stated the merits for it. 

Thank you. 

Mr. MooRHEAD. The gentlelady from Colorado, the ranking mi- 
nority member of the subcommittee. 



223 



Mrs. SCHROEDER. Thank you, Mr. Chairman. I apologize for 
being late, but being one of the 24 targeted— or 28 targeted— on 
that list, we had a press conference to point out we did not appre- 
ciate being labeled. , n^. ^, r^rjr 

So I would put my opening statement m the record, it that s OK. 

[The prepared statement of Mrs. Schroeder follows:] 



224 

Prepared Statement of Hon. Patricia Schroeder, A Representative in 
Congress From the State of Colorado 

I thank the Chairman for scheduling this hearing. As a cosponsor of 
H.R. 989, I am pleased that we have this opportunity to hear from this 
distinguished group of witnesses, and to identify any issues that we may need to 
address in terms of refining this bill as we move to markup. I understand that 
the Chairman is looking at July 27 for a markup of this bill, and I would 
certainly support that, and hope we can work on a bipartisan basis to move this 
bill forward. 

H.R. 989 represents an important harmonization ~ even though it is an 
imperfect harmonization ~ because without it, U.S. copyright owners will 
receive less protection in the European Union than their E.U. counterparts. I 
think it is very important that we make sure that U.S. copyright owners are on 
an equal footing in Europe with E.U. copyright owners. 

The evidence is clear that this change will benefit the U.S. trade balance, 
and I think that is a significant factor. Passage of H.R. 989 will also signal our 
commitment to provide strong protection of intellecmal property, both 
domestically and internationally. It is critical that the United States continue to 
play a strong leadership role internationally in the development and enforcement 
of intellectual property rights, and in the ongoing effort to achieve 
harmonization where possible. 

At the same time, I am interested in hearing about aspects of the bill that 



225 



our witnesses believe can be improved. I know from reviewing the written 
testimony, for example, that there are concerns that libraries, educational 
institutions and archives may suffer unintended negative impacts in their efforts 
to preserve and provide access to older copyrighted works for educational use. I 
want to make sure that we look carefully at those issues and take any steps 
necessary to make sure that those concerns are addressed. There are also 
concerns about works for which the time period for exercising termination 
under section 304 has already lapsed, and about unpublished works covered by 
section 303. 

I join the Chairman in welcoming our witnesses today, and look forward 
to hearing your views, and in particular, your suggestions for any fine-tuning 
that would strengthen this bill as it moves forward. 



226 

Mrs. SCHROEDER. And let me say, Ms. Peters, it's very nice to 
have you with your voice back. 

Ms, Peters. With my voice back. Thank you very much. 

Mrs. SCHROEDER. Absolutely. 

Commissioner Lehman, you said that the U.S. copyright-based 
industry and the public could benefit even more if we harmonized 
our copyright laws in further areas. Would you like to provide a list 
for the record or could you tick them off, or what other additional 
harmonizations should we consider? 

Mr. Lehman. I think in previous testimony before the committee 
I've indicated some of the areas. For instance, at the present time, 
the United States has a law that governs sound recordings that is 
not compatible with most of the rest of the world, and in particular, 
the European Union. Now the legislation that is pending before 
this the subcommittee, that I believe you and the chairman are 
sponsors of, does move us in that direction, but it only moves us 
part of the way there. So that continues to be a problem area. 

We also have differences in rental rights between the United 
States and our foreign trading partners. At this point I wouldn't 
want to propose changing that, but we should understand that the 
international negotiations in this area will probably only bear so 
many differences in the system. If we're going to retain anomalies 
in U.S. copyright law that currently exist, to the extent that we can 
find areas of common agreement with our trading partners, it 
makes it easier for us to come to that agreement that we all seek. 

One of the areas that will probably be coming to your attention 
that we are discussing with Europe right now, is the protection of 
noncopyrightable database. The European Commission is moving to 
promulgate a new directive on noncopyrightable data base. Non- 
copyrightable data bases are very important collections of data, 
particularly those that might be in a computer, that don't meet the 
test of authorship. In our own law we had a famous Supreme Court 
case, the Feist case, which very much narrowed the scope of copy- 
right protection for such extremely valuable commercial works. 
These works will be very valuable on the global information super- 
highway. 

Europe has really taken the lead in this area, I think, it is rare 
for Europe to be more proactive than we are in trying to address 
that problem. That's an area I would look to where we might wish 
to take a look at their directive and consider harmonization in the 
same way we do here. So if there are areas where we can move in 
their direction, then it makes it easier for them to move in our di- 
rection or to accommodate some of the remaining anomalies that 
will be very hard to remove in U.S. law for an extended period of 
time. 

Mrs. SCHROEDER. Ms. Peters, you said you had concerns for li- 
braries and educational institutions and their ability to carry out 
preservation and access, and so forth. Do you have some language 
or an3^hing that could help us with those concerns? 

Ms. Peters. We would certainly be — we'd like to try to do that 
for you. We're really not talking about any work that is commer- 
cially available. If it's commercially available, it's not an issue in 
a library. The American public has access to it. And the older the 
work is, the more difficult it is to secure permission to use it. So 



227 

we would like to take the opportunity to try to give you some very 
narrow language to solve some of those problems, to work with the 
library associations to see that their needs are met. 

Mrs. SCHROEDER. We would really appreciate that. 

You also raised some questions about the beneficiaries of the 
extra 20 years and who they should be, especially where there's no 
existing termination right. Do you or Mr. Lehman have anything 
you want to say about that. 

Ms. Peters. I just noted that in general the Constitution talks 
about authors, and authors have benefit, and that in 1976 the way 
that we handled that with giving the author the right to terminate, 
and that for some of the works that right has passed, and that 
that's a question. We're not actually advocating a position one way 
or the other because we actually are the ones who record the termi- 
nation notices, and we get very, very small numbers compared to 
the works at large. I think last year we looked at what we got as 
far as termination notices, and it was something like 549, 541 of 
which covered musical compositions, and most didn't have multiple 
titles. So when you look at that small percentage in relation to the 
work as a whole, I'm not really sure where you want to come out, 
but I just did point out that in one instance there is no way for 
the author to basically recoup the extra 20 years, where all the 
other authors have that possibility. 

Mrs. Schroeder. So you don't have any solution for us, but 
you're just 

Ms. Peters. Well, I'm basically saying that 

Mrs. Schroeder [continuing]. Making us mindful of it? 

Ms. Peters [continuing]. Possibly you could consider another ter- 
mination for those works, but I think that's your choice. What you 
really have is every other author having the ability to renegotiate 
for the extra 20 years, and there's this one little narrow category 
where that opportunity has passed. 

Mrs. Schroeder. I really have no further questions, Mr. Chair- 
man. I just want to thank Ambassador Barshefsky. I really did ap- 
preciate the terrific work you did in China. I know the committee 
was very, very impressed by the intellectual property agreement 
that you got, and you kind of pulled the rabbit out of the hat. So 
thank you very much 

Ms. Barshefsky. Thank you. 

Mrs. Schroeder [continuing]. For your hard work. 

Thank you, Mr. Chairman. 

Mr. Moorhead. The gentleman from Ohio, Mr. Hoke. 

Mr. Hoke. Thanks, Mr. Chairman. 

There are always winners and losers, and I'm trying to figure out 
who the winners are and who the losers are with this legislation. 
Maybe we could start with that. 

IVls. Peters, have you got any thoughts on it? 

Ms. Peters. Who are the winners? 

Mr. Hoke. Well, the winners are fairly obvious. 

Ms. Peters. OK. 

Mr. Hoke. But go ahead. 

Ms. Peters. The winners are obvious. It's the owner of works 
that are commercially viable and where there are new uses, espe- 
cially because of new technology. Authors and other copyright own- 



228 

ers should be the beneficiary of that, and so they v/in the extra 20 
years and they certainly, with regard to Europe and other coun- 
tries that go to the longer term, have the ability to recoup that 
money that they're really entitled to, because it's their works that 
are being used. 

On the loser side, it's less clear. I believe that there's a public 
benefit in this legislation. However, you have to be midful of the 
fact that it is very difficult to find copyright owners in some cases 
and that there maybe legitimate and beneficial uses of those works. 

In my statement we pointed out that Canada, Japan, and a num- 
ber of countries have specific provisions dealing with situations 
where the copyright owner cannot be located, and I think it's time 
that this country looked at this issue. 

And I do feel very strongly, that the works that haven't been 
published in the 17 years since the effective date of the current 
copyright law should enter the public domain in 2003. The likeli- 
hood of their being published seems to be very small and the bene- 
fit to be gained by the American public is large. I could give a list 
of the things that are just sitting in the Library of Congress that 
fall into this category. 

Mr. Hoke. And what will happen exactly with those? 

Ms. Peters. The Library has the ability to make them available 
to the public. We could either make them widely available through 
the Internet or could put them into class rooms. I have in my testi- 
mony an example where we've cleared an entire collection except 
the letters, but the letters are absolutely critical to the collection. 
One of the collections that we're going to be working on next year, 
but with the help of the family, is the works of Leonard Bernstein. 
The family would like to see the collection disseminate to the 
American public. We're going to have to work out the various nec- 
essary clearances of rights. 

I think you're going to hear from a lot of people — and we cer- 
tainly did that many people use the public domain to spur new cre- 
ations, and that much of the material that authors use is material 
that's in the public domain. 

Mr. Hoke. What does the word "use" mean there? 

Ms. Peters. "Use" means to basically take a work and create a 
new version of that work. I was reading on the plane the other day 
about "Little Women." "Little Women" is in the public domain. A 
key point of the article was that now there are many, many ver- 
sions of "Little Women," and some of the versions actually have 
Beth living because Americans don't like young women to die. 
When a work is under copyright, you can't have that happen. You 
have to have permission of the copyright owner to make a new ver- 
sion of the work. Once it's in the public domain, people can take 
it and change it. So to the extent that there are people who basi- 
cally create new derivative works, that 

Mr. Hoke. And they don't have to — but they don't have to give 
an attribution to the derivation. They don't have to make a 

Ms. Peters. Well, there's actually a question about moral rights 
that I'm not going to get into. The issue is whether or not you have 
to give credit to authors. The United States is a member of the 
Berne Convention which requires that we provide a right of attri- 
bution at least during the author's life and 50 years after that. I 



229 V 

guess Louisa May Alcott's been dead longer than that. So, no, they 
really don't have to. 

But I think there's a lot of documentary films — I know that the 
film that Ken Burns did about the Civil War, where a lot of the 
footage came from material in the public domain that was in the 
collections in the Library — I'm talking about those kinds of works 
where there could be a down side caused by the extension of the 
copyright term. 

Mr. Hoke. Has anybody calculated on the up side to the holders 
of the copyright what the additional 20 years means in terms of 
dollars? 

Ms. Peters. Somebody in their testimony has that. 

Mr. Lehman. I don't think we have a figure within the adminis- 
tration, but I'm sure that an estimate could be developed if you're 
willing to spend taxpayer money or other resources to have econo- 
mists work on it. Nevertheless I think we can take judicial notice 
of the fact that the period that we're talking about going to in the 
fairly near future is a period in which U.S. commercial copyrighted 
works exploded onto the international scene in a very big way. So 
there is very little question that very large sums of money will be 
flowing into the U.S. economy. You mention, winners and losers? 
In many ways, Congress in its struggle to try to balance the books 
of the Federal Government is going to be a winner because, with- 
out increasing a single tax rate, there's going to be considerable ad- 
ditional growth in the GDP as a result of this bill. Keep in mind 
that copyright-based industries are one of the biggest U.S. indus- 
tries, I think about the second biggest exporting industry in the 
United States, and there will be tax paid on this revenue that's 
flowing into the country. 

Mr. Hoke. How much are we talking about? 

Ms. Barshefsky. If I may — if I may comment, sir 

Mr. Hoke. Please. 

Ms. Barshefsky. In my testimony I've indicated that, based on 
estimates from ASCAP with respect to the music industry, one of 
the music-collecting societies, that works that would otherwise 
have not — that some $14 million annually in revenue would be re- 
ceived as a result of the term extension. The Motion Picture Asso- 
ciation estimates that in the earlier years additional term exten- 
sion would result in relatively minor revenue additions, a million 
dollars by the year 2000. But as you go out to 2010, 2020, the num- 
bers rise very dramatically to between $160 million and $200 mil- 
lion annually. 

Mr. Hoke. Well, I appreciate that. I don't know how, Mr. Leh- 
man, you can extrapolate that as having some sort of material ef- 
fect on our GDP that's over $6 trillion. You're talking about a $14 
million addition. I'm not — am I missing something here? 

Mr. Lehman. Well, those were figures from two industry trade 
associations from ASCAP, a performing arts society, which has an- 
nual revenues of perhaps, a half a billion dollars, and from the mo- 
tion picture industry, which is a big industry, and has revenues of 
perhaps $10 billion. In total, I think the copyright industries are 
well over $200 billion. So that's why I say, to really have an accu- 
rate study, you would have to get some Ph.D. economists and really 
do an extensive analysis. But our view is that we can take judicial 



230 

notice of the fact that there probably will be considerable additional 
revenue. 

Mr. Hoke. All right. Well, considerable additional revenue, 
though, is we're — I mean, if we order a — or we increase it by an 
order of magnitude, we could be saying maybe $140 million or $200 
million. I mean, this is not a material impact on our economy. I 
just want to make that point. 

The last thing I want to say is this, or I really want to ask you: 
let's get to the other side of this question, which I think is more 
interesting. I mean, we just went from 50 years to 70 years. We're 
talking about a new — we're talking about an information age. 
We're talking about new technology. We're talking about some 
works that will have lasting impact. I mean, maybe the works of 
Gershwin may be considered to be like the works of Mozart in 200 
years. Why 70 years? Why not forever? Why not 150 years? 

Ms. Peters. Actually, that's a very good question. There cer- 
tainly are proponents of perpetual copyright: We heard that in our 
proceeding on term extension. The Songwriters Guild suggested a 
perpetual term. However, our Constitution says limited times, but 
there really isn't a very good indication on what limited times is. 

The reason why you're going to life-plus-70 today is because Eu- 
rope has gone that way, and I think- 



Mr. Hoke. Well, let's follow Europe; they're 

Ms. Peters. No, what I'm saying is even if you look at the Euro- 
pean Commuity, it largely settled on a term of life-plus-70 because 
Grermany had that term. That was the longest term in the Euro- 
pean Community. Had Germany not been there, that wouldn't have 
been what was chosen as the community term of protection. 

So I can't answer that question. I don't know what it would be. 
If you look at the history of increasing the term in the United 
States, every so often people say it needs to be increased because — 
and they give a list of reasons, and it's up to you as Congress to 
decide whether or not it's in the public interest. 

Mr. Hoke. Thank you very much, Mr. Chairman. Thank you very 
much. 

Mr. MOORHEAD. The gentleman from North Carolina, Mr. Coble. 

Mr. Coble. Mr. Chairman, I apologize for my belated arrival. I 
had two or three other places to be. I apologize to the panel as well 
for having missed your testimony. 

This may have already been asked, but I'm just curious to know, 
Commissioner, what you and your colleagues think about this. 
There have been proposals that, in lieu of the author or, more real- 
istically, his or her heirs, receiving money from licenses or royalties 
earned during the extra 20 years, that that money be placed in a 
fund for the promotion of arts and authors in general. What would 
be you all's response to that? 

Mr. Lehman. The administration has considered that issue and 
has concluded that we do not support that approach at this time. 

Mr. Coble. And I don't mean to imply that I do. I just was curi- 
ous to know what you all had to say about that. 

Ms. Peters. I would just speak, on behalf of the Copyright Of- 
fice. We studied Senator Dodd's bill, which was similar to that. He 
had an Arts Endowment Act of 1994, where you'd auction off copy- 
rights at the end of the term. There was also a bill that would ere- 



231 

ate a public trust. In general, we have been opposed to such bills, 
especially on international grounds. One of the things that you 
don't want to do is place support for the arts on the backs of au- 
thors and other copyright owners. Moreover, it wouldn't be fair to 
only fund Americans with money that is being raised from works 
of all countries. So although I think everybody's in support of the 
arts and wants to see the arts adequately funded, you'd have to 
study very carefully any kind of a proposal that would use either 
copyright or copyrighted works as a vehicle to do that. 

Ms. Barshefsky. Sir, if I may add that, with respect to our copy- 
right policy and the European Union, we've consistently opposed 
the mandatory allocation of funds to subsidize domestic cultural ac- 
tivities. There's a great concern that, were the United States to 
move in that direction, the European Union and other trading part- 
ners might try and imitate our actions, but in a manner even less 
desirable than they currently have. 

Mr. Coble. Thank you. Thank you, Mr. Chairman. 

Mr. MOORHEAD. The gentleman from Pennsylvania, do you have 
any questions you wish to ask? 

Mr. Gekas. Yes, where are we? [Laughter.] 

That's my question and I'll reserve my time. 

Mr. MooRHEAD. I've been told that a number of our early motion 
pictures, which are certainly a part of our heritage in which we 
have been trying, through various pieces of legislation, to preserve 
at least the best of them, but we've been told that those that are 
not under copyright any longer are rapidly deteriorating because 
there's no one who feels the responsibility to spend money on them 
and to keep them and care for them. I guess that happened a great 
deal in the early days of motion pictures when they didn't cost as 
much. 

Do you think this is true and that legislation of this kind will be 
of assistance in that respect? 

Ms. Peters. I can't — personally, I don't know whether it's true 
or not. I'm aware that the Library of Congress which has one of 
the largest film collections in the world, is dedicated to preserva- 
tion of films. Public money goes to preserve those films. There's a 
new film preservation bill which would provide partial funding; the 
Government would be funding part, but the rest of the funding 
would come from copyright owners, that is, the studios. 

Film preservation is critical to this country s cultural heritage, 
and there are a number of ways to do it. However, I really don't 
know whether or not having the work in the public domain has af- 
fected film preservation efforts. 

Mr. MoORHEAD. There's a limited number of pictures, motion pic- 
tures, that come under that film preservation. Each year we add 
a few. 

Ms. Peters. Twenty-five. I think you're talking about the Film 
Preservation Board adding 25 films to the film registry each year, 
but there's another effort to basically preserve films in general as 
part of our cultural heritage. 

Mr. Lehman. Mr. Chairman, the very situation that you just de- 
scribed was one of the things that the administration considered in 
deciding to support the legislation. It was persuasive to us, because 
we had some anecdotal evidence that resulted from when certain 



232 

works were brought back out of the pubUc domain as a part of the 
NAFTA agreement. 

I think that there is an evolving consensus in U.S. society on a 
bipartisan basis that marketplace solutions are preferable to Gov- 
ernment regulation and bootstrap schemes for accomplishing larger 
social purposes. To the extent that you can provide an economic in- 
centive for the preservation and dissemination of works, you're on 
pretty solid ground, and, of course, that's why the copyright law 
and intellectual property is such a magnificent thing. 

Getting back to the earlier question by, I believe, Mr. Hoke, 
about when should copjright expire, this is an evolved law but 
many of the decisions that were made were very arbitrary. One of 
the things that is now being talked about on an international basis 
in connection with the new global information infrastructure and 
the digital highway and has been floated by our Japanese trading 
partners, is the idea that perhaps there ought to be some kind of 
new intellectual property right specifically for people who take 
something which even might be in the public domain, and then re- 
vive it, digitize it. Obviously, it would only be in their particular 
digitized version of it, but give them some incentive for taking 
something and adding value to it, so that it can be made available 
to people. This is something that is being talked about. Certainly, 
to the extent that copyright provides an economic incentive for peo- 
ple to rerelease works, it's an advantage of this bill. 

Mr. MOORHEAD. You state that the grant of copyright term ex- 
tension may encourage copyright owners to restore and digitize 
works that are about to fall in the public domain. 

Mr. Lehman. That's correct. 

Mr. MoORHEAD. As Chairman of the administration's Task Force 
on Information Infrastructure, do you believe that this bill would 
encourage copyright owners to add to the content which will be 
available to the Internet? 

Mr. Lehman. Yes, I do. 

Mr. MoORHEAD. I know this problem of money has been dis- 
cussed here several times and the questions that are asked — I 
think one of the big problems that we run into here is the fact that 
copyrighted works in other parts of the world are being protected 
beyond the term limits of our copyright, and, yet, our own people 
will be shortchanged in that respect as far as use in other parts 
of the world. To protect those has to be totally a plus for our coun- 
try and no negatives whatsoever because, to the extent that it 
brings in additional revenues, additional taxable income, and so 
forth, regardless of whether it's small or large, will be a plus for 
us. True? 

Ms. Peters. Can I just say one thing? 

Mr. MOORHEAD. Yes. 

Ms. Peters. I agree, and I support this bill wholeheartedly. 
There is a cost, though, in the United States. By adding 20 years 
in the United States, then people have to pay in the United States. 
So although I support it, and agree that we would be getting addi- 
tional revenue from the foreign countries of the European Union, 
there is an impact in the United States itself. 

Mr. MOORHEAD. Well, I have no further questions. I don't — does 
any member of the panel have an additional question? 



233 

[No response.] 

Mr. MOORHEAD. If not, we want to thank you very much. 

Ms. Barshefsky. Thank you. 

Ms. Peters. Thank you. 

Mr. Lehman. Thank you, Mr. Chairman. 

Mr. Moorhead. Our next witness will be Mr. Quincy Jones. Over 
the years Mr. Jones' career has encompassed the roles of composer, 
record producer, artist, film producer, arranger, conductor, instru- 
mentalist, TV producer, record company executive, magazine found- 
er, and multimedia entrepreneur. He's won 26 Grammy Awards, 
the Recording Academy's Trustee's Award, and a Grammy Living 
Legend Award. He's also an Emmy winner and seven-time Oscar 
nominee, and was recently honored by the Academy of Motion Pic- 
ture Arts and Sciences with their John Hersholt Humanitarian 
Award. He's the chief executive officer of Quincy Jones Entertain- 
ment. 

Welcome, Mr. Jones. 

Mr. CONYERS. Could I, Mr. Chairman, could I add my welcome 
to Mr. Jones, our witness? 

Mr. Moorhead. You sure can. 

Mr. CONYERS. As one who may have known him as long as any- 
body in the Congress — we don't like to get into the numbers thing, 
but it's a real pleasure to have him come here. It was at some ex- 
pense of his time to travel across the country, and it makes me feel 
very good because I've seen him in every part of our society except 
as a witness in Congress. [Laughter.] 

I don't know if you've been doing this a long time or not, but, 
Quincy, you are probably one of the last survivors of that part of 
the jazz era called "bop," and reviewing this in one of the docu- 
ments about you, it made me remember that you tie — through you 
have come all the contacts with almost all the musicians — black, 
white, Latin, international, local, foreign, domestic, and everything 
else. And whenever I used to hear a good tune that I didn't know 
who did it, after about three or four times of finding out that it was 
you, I probably attributed tunes to you that maybe you didn't do, 
but it always fascinated me, that great variety in your repertoire 
that you could reach to it. So I'm very, very happy to have you 
here. 

And thank you for allowing me to say that, Mr. Chairman. 

Mr. Jones. Thank you. 

Mr. Moorhead. And we felt you needed one more thing to put 
in your bibliography. So that's why you can say you're a witness 
at a congressional hearing. 

Would you summarize your statement in 10 minutes or less, and 
then we'll all ask you all kinds of questions. 

STATEMENT OF QUINCY JONES, SONGWRITER AND MEMBER, 

AMSONG, INC. 

Mr. Jones. OK. Good morning, Chairman Moorhead and mem- 
bers of the subcommittee. My name is Quincy Jones and I'm a 
songwriter, among other things, and a member of AmSong, Inc. 

I'd like to take this opportunity also to sincerely thank all of you 
here in the administration for your support for this bill. It means 
a lot to us. 



234 

And I'm particularly fascinated with Representative Hoke's state- 
ment. I found a whole new view of things there. He just mentioned, 
why not forever? I never thought of that before. That's a good one. 

AmSong is a not-for-profit association representing a vast cross- 
section of America's songwriting community. AmSong's member- 
ship ranges from the great American musical estates of Irving Ber- 
lin, Ira and George Gershwin, Rodgers and Hammerstein, Hoagy 
Carmichael, Johnny Mercer, Henry Mancini, to America's finest 
contemporary songwriters, such as Bob Dylan, Don Henley, Billy 
Joel, Stephen Sondheim, Alan Menken, Dave Brubeck, and Lionel 
Richie, just to name a few. 

AmSong is dedicated to the protection of American intellectual 
property. And of paramount concern to AmSong's membership, and 
one of the reasons that I, myself, became a member of AmSong, is 
to ensure that this country provides copyright protection for its citi- 
zens' creations for a fair and reasonable period of time. 

Several members of AmSong who are unable to testify this morn- 
ing have prepared statements in support of H.R. 989, and I'll be 
placing — we'll be placing into the record personal statements by a 
number of AmSong members, including Bob Dylan and, just most 
recently, Don Henley, Stephen Sondheim, Alan Menken, Ellen Don- 
aldson, and Mrs. Henry Mancini. 

Mr. MOORHEAD. Are you offering those statements for the record 
at this time? 

Mr. Jones. Yes. 

Mr. MooRHEAD. Without objection, they will be placed in the 
record. 

Mr. Jones. Two weeks ago, on July 1, 1995, the countries mak- 
ing up the European Union implemented a uniform term of copy- 
right which is that of the life of the author plus 70 years, and as 
part of that process these countries have invoked the rule of the 
shorter term when determining the extent of copyright protection. 
This means that the works created outside of the countries that are 
a part of the European Union will be protected for the shorter of 
life-plus-70 years or the term in effect in the country when the 
work was created. This means that under the current laws songs 
such as "In the Heat of the Night," "In the Eyes of Love," both of 
which I wrote in 1967, will go out of copyright in 2042, while a 
song written in England, France, or Germany in the same year by 
an author of the same age as myself, 49 — [laughter] — will remain 
protected until 70 years after his death. If the European author 
dies at the age of 85 in the year 2018, his work will continue to 
be protected until 2088. That's a full 46 years of protection beyond 
that which is provided for my work in the United States. And it's 
ironic that this great country, which has spawned cultural treas- 
ures that are unsurpassed in the world, should deny the creators 
of these treasures protections commensurate with those offered in 
virtually every democratic nation in the world. 

The intent of our copyright laws is to encourage creativity by 
guaranteeing the protection for the life of the creator plus two gen- 
erations of his or her successors. My own situation illustrates all 
too clearly how this intent is not currently being satisfied. I began 
writing songs as a young man back in 1948. If I'm 49, I have to 
change that. [Laughter.] 



235 

Like so many people today, I've been blessed with children later 
in my life — I have a 2-year-old — indeed, more than 45 years after 
I published my first song. And I believe that my children are enti- 
tled to the same rights with respect to my songs as the children 
of yesteryear born to parents in their twenties. Today people have 
a greater life expectancy and they begin families in their thirties 
and forties, and such societal changes necessitate a revision of our 
current laws. 

The alternative to copyright protection is, of course, that works 
will fall into the public domain. While the term "public domain" im- 
plies that the ultimate public, the consumer, will have free and 
easy access to creative works, this is really not the case. The price 
of a quality compact disk recording of Beethoven is no less expen- 
sive than the price of the latest Pearl Jam LP. This is Leo Tolstoy; 
this is John Grisham. This book costs more than John Grisham, 
and we know how long Tolstoy's been around. He was influenced 
by Alexander Pushkin years ago, 19th century. [Laughter.] 

The record company that manufactures the CD does not have to 
pay royalties to the Beethoven estate, and these cost savings are 
not passed on to the consumer. Beethoven's "Violin Concerto" costs 
exactly the same as "Garth Brooks' Greatest Hits." The book pub- 
lisher does not need to pay royalties to the Leo Tolstoy estate. And, 
again, this is not reflected in the cost of the book to the public. 

My songs are my legacy to my children. Because my pre- 1978 
works, which represent at least 40 percent of my catalog, are only 
protected for a fixed term of 75 years from registration, my catalog 
will begin to fall into the public domain when my youngest child 
is only 30 years old. And without an extension of the current copy- 
right period, my children, my most immediate successors, will be 
deprived of their legacy from me while they're still young adults. 
And I have no desire at all to see my children be denied that which 
I have intended for them. 

Fortunately, I have written well over 400 songs in my lifetime, 
but we must not forget that there are many songwriters, musi- 
cians, particularly blues and jazz musicians, who support them- 
selves entirely and their families on the royalties earned from the 
three or four songs that they composed that may have become a 
hit. An extended term of copyright will make an acute difference 
in the quality of life for these artists. 

An extension in the term of copyright would also benefit the fam- 
ilies of writers, great songwriters, such as Duke Ellington, 
Theloneous Monk, Muddy Waters, and Willy Dixon, who early in 
their careers were often required to enter into agreements relin- 
quishing ownership of their works, and I've seen this happen on 
many occasions. The 20-year term extension would give their fami- 
lies some of the benefits of ownership that they may have lost in 
the first 50 years of their copyright, way past the popularity of the 
song. 

Just as important to remember is the sad reality that, once 
works fall into the public domain, the families of the creators have 
no incentive to maintains the works in a format that is useful to 
the public. Most of the estates represented by AmSong maintain 
extensive archives that are not only sources of information for 
scholars, but also serve as cultural resource centers for the public, 



236 

anxious to perform a special piano concerto by George Gershwin or 
an orchestral arrangement by Leonard Bernstein. It is the public 
who will wind up losing if an unreasonably short copyright term 
puts the archives of these master songwriters out of business. 

And, finally, compelling economic factors mandate an extension 
of our copyright laws. America's intellectual property is this coun- 
try's second largest export, and it also provides a significant reve- 
nue base at home. Our country's culture is universally popular. I've 
seen it all over the world myself personally. It is heard, seen, per- 
formed, and enjoyed everywhere throughout the world. 

In light of the recent European Union action, copyright term ex- 
tension in the United States has become an essential element in 
safeguarding our national economic security. And, moreover, every 
year more and more works are falling into the public domain while 
they're still commercially viable. This not only deprives the owners 
of the works and their families of the benefits of income, but it di- 
minishes the flowback of taxable revenues generated from overseas 
sales. 

Under the existing cop3nright laws, Americans and Europeans are 
required to pay for every use of Revel's "Bolero," while neither 
Americans nor Europeans are required to pay when using W.C. 
Hanle/s "St. Louis Blues," written in 1914. It's kind of difficult for 
me to comprehend this logic. 

We must extend the term of the copyright in the United States 
if we are to continue to reap the economic benefits of our intellec- 
tual property in the world and domestic marketplaces. And for all 
of the foregoing reasons, it is imperative that we extend the term 
of copyright in the United States by 20 years. 

I commend you. Chairman Moorhead, for introducing H.R. 989, 
the Copyright Term Extension Act of 1995. I urge each and every 
member of the subcommittee and every Member of Congress to 
support this bill and vote H.R. 989 into law this year. 

And I thank you for your time. 

[The prepared statements of Mr. Jones, Mr. Dylan, Mr. Henley, 
Mr. Menken, Mr. Sondheim, Mrs. Mancini, Ms. Donaldson, Mr. 
Schoenberg, Ms. Durham, Ms. Miller, and Ms. Barrett follow:] 



237 

Prepared Statement of Quincy Jones, Songwriter and Member of AmSong, 

Inc. 

Good morning, Chairman Moorhead and members of the subcommittee. My name is 
Quincy Jones, and I am a songwiiter and member of AiuSong, Inc. 

AmSong is a not-for-profit association representing a vast cross-section of America's 
songwriting community. .■\mSong's membership ranges from the great American musical 
estates of Irving Berlin, Ira and George Gershwin, Rodgers and Haramerstein, Hoagy 
Carmichael, Johnny Mercer and Henry Mancini, lo .America's finest contemporary 
songuTiters such as Bob Dylan, Don Henley, Billy Joel, Stephen Sondheim, Alan Menken, 
Dave Brubeck and Lionel Richie, to name a few. 

.AmSong is dedicated to the protection of American intellectual property. Of 
paramount concern lo .AmSong's membership, and one of the reasons that I myself became 
a member of AmSong, is to insure that this countw provides copyright protection for its 
citizens' creations for a fair and reasonable period of time. Several members of AmSong, 
who arc unable to testify- this morning, have prepared statements in support of H.R. 989. I 
will be placing into the record, personal statements by a number of .\mSong members, 
including Bob Dylan. Stephen Sondheim, Alan Menken, Blen Donaldson, and Mrs. Heniy 
Mancini. 

Two weeks ago on July 1, 1995 the countries making up the European Union 
implemented a uniform term of copyright which is that of the life of the author plus 70 
years. .As part of that process, these countries have invoked the "rule of the shorter term" 
when determining the extent of copyright protection. I'his means that the works created 
outside of the countries that are a part of the European Union will be protected for the 
shorter of life plus 70 years or the term in effect in the country where the work was created. 
This means that under the current laws, songs such as "In The Heat Of The Night" and 
"The Lyes Of Love" both of which 1 wrote in 1967 will go out of copyright in vq42, while a 
song written in England, France, or Germany in the same year! by an author the same age 
as myself, will remain protected until 70 years after his death. If the European author dies 
at the age of 85 iii the year 2018, his work will contiime to be protected until 2088. That is 
a full 46 years of protection beyond that which is provided for my work in the United 



238 



States. It is ironic that this great country that has spawned cultural treasures unsurpassed 
in the world should deny the creators of these treasures, protections commensurate with 
those offered in virtually every democratic nation in the world. The intent of our copyright 
laws is to encourage creativity by guaranteeing the protection for the life of the creator plus 
two generations of his or her successors. My own situation illustrates all too clearly how 
this intent is not currently being satisfiecL I began writing songs as a young man back in 
1948. Like so many people today, I have been blessed with children later in my life— 
indeed more than 45 years after 1 published my fiirst song. 1 believe that my children are 
entitled to the same rights with respect to my songs as the children of yesteryear bom to 
parents in their twenties. Today people have a greater life-expectancy and begin families 
in their thirties and forties. Such societal changes necessitate a revision of our current 
laws. 

The alternative to copyright protection is, of course, that works will fall into the 
public domain. While the term "public domain" implies that the ultimate public, the 
consumer, wiU have free and easy access to creative works, this is really not the case. The 
price of a quality compact disc recording of Beethoven is no less expensive than the price of 
a Pearl Jam CD. The record company that manufactures the CD does not have to pay 
royalties to the Beethoven estate and these cost savings are not passed on to the consumer. 
Similarly, the price of a quality paperback by Henry James is no less than the price of the 
latest John Grisham release The book publisher does not need to pay royalties to the 
Henry James estate, and again this is not reflected in the cost of the book to the public. 

My songs are my legacy to my children. Because my pre- 1978 works, which represent 
at least 40% of my catalogue, are only protected for a fixed term of 75 years from 
registration, my catalogue will begin to fall into the public domain when my youngest 
child is only 30 years old. Without an extension of the current copyright period, my 
children - my most immediate successors - will be deprived of their legacy from me while 
they are still young adults. I have no desire to see my children be denied that which 1 
intended for them. 

Fortunately, I have written well over 400 songs in my lifetime. But we must not forget 
that there are many songwriter/ musicians, particularly blues and jazz musicians who 
support themselves and their families on the royalties earned from the three or four songs 
that they composed. An extended term of copyright will make an acute difference in the 
quality of life for these artists. An extension in the term of copyright would also benefit 

-2- 



239 



the families of songwriters such as Muddy Waters, Willie Dixon, and Duke Ellington, who 
early in their careers, were often required to enter into agreements relinquishing ownership 
of their works. The 20 year term extension would give their famiUes some of the benefits of 
ownership that they may have lost in the first 56 years of copyright. 

Just as important to remember, is the sad reality that once works fall into the public 
domain, the families of the creators have no incentive to maintain the works in a format 
that is useful to the public. Most of the estates represented by AmSong maintain ev:tensi\"e 
archives that are not only sources of information for scholars, but also serve as cuUural 
resource centers for the public, anxious to perform a special piano concerto by Geoige 
Gershwin or an orchestral arrangement by Leonard Bernstein. It is the public who will 
wind up losing if an unreasonably short copyright term puts the archives of these master 
songwriters out of business. 

FinaUy, compelling economic factors mandate an extension of our copyright laws. 
.American intellectual property is this country's second largest export and it also provides a 
significant revenue base at home. Our country's culture is universally popular; it is heard, 
seen, performed, and enjoyed everywhere throughout the world. In light of the recent 
European Union action, copyright term extension in the United States has become an 
essential element in safeguarding our national economic security. Moreover, every year 
more and more works are falling into the public domain while they are still commercially 
viable. This not only deprives the owner of the works and their families the benefits of 
income, but it diminishes the flowback of taxable revenues generated from overseas sales. 
We must extend the term of copyright in the United States if we are to continue to reap the 
economic benefits of our intellectual property in the world and domestic marketplaces. 

For all of the foregoing reasons, it is imperative that we extend the term of copyright 
in the United States by 20 years. 1 commend you. Chairman Moorhead, for introducing 
H.R. 989, the Copyright Term Extension Act of 1995. I .urge each member of this 
SubcomiHittee, pnd every gjemba" of Congress to suppon this bill and vote H.R. 989 into 




240 

[The prepared statement of Mr. Dylan follows:] 
Prepared Statement of Bob Dylan 



My name is Bob Dylan and song writing is my profession. Allow me to express myself concerning 
the Copyright Term Extension Act of 1995. 

My first song was published by Witmark Music in 1961. My status at the time was 20 years old, 
unmarried, with no children. My situation changed to include a wife and family and the writing of 
many more songs. 

The impression given to me was that a composer's songs would remain in his or her family and 
that they would, one day, be the property of the children and their children after them. It never 
occurred to me that these songs would fall into the pubic domain while my children are still in the 
prime of their lives, and while my grandchildren are still teenagers or young adults. Yet this is 
exactly what will occur if H.R.989 is not enacted. 

Our current term of copyright is a flat 75 years for works written prior to 1978, and life plus 50 
years for works written on or after January 1, 1978. This term is significantly shorter than the 
term of copyright adopted by the fifteen member nations of the European Union, the countries 
making up the European Economic Area and the numerous other countries which will be 
changing their copyright laws to provide for a term of life of the author plus 70 years. 

The discrepancy between the term of protection offered to American creators and the term of 
protection offered to European creators is particularly striking. European audiences have always 
enthusiastically welcomed American popular musicians. They buy our records, they play our 
music over the airways, and they attend our concerts, often in sell-out crowds. And yet, due to 
the apphcation of the rule of the shorter term, our works will cease to be protected long before 
European works of comparable age. The enactment of H.R.989 will go a long way towards 
equalizing the playing field for American and European works and rectifying the injustice to 
American creators. 

It is important for the congress to enact H.R.989, and its companion bill. S.483 this year. 



241 

[The prepared statement of Mr. Henley follows:] 



Prepared Statement of Don Henley 

Dear Chairman Moorhead, Members of the Subcommittee on Intellectual Property, 
and distinguished members of Congress; 

My name is Don Henley. I am a songwriter, music publisher and recording artist. 
I appreciate the opportunity to express my support for H.R. 989, the Copyright Term 
Extension Act of 1995. 

You have heard many compelling arguments for the exter^ion of the term of 
copyright protection for American intellectual property to match that of the 
European Union Directive of life plus 70 years. The members of the United States 
creative community have testified that this is a trade matter, an economic issue of 
vital importance to the American participation in the global marketplace. You've 
been told that our current laws create what is essentially a twenty-year free ride to 
the European Union — they can use and abuse o\ir works for free, while we have to 
pay for the use of theirs. You've also heard about the questionable real value to the 
people of public domain material. It is all this, but it is very much more. 

On a daily basis, I wear many hats. I care passionately about the preservation of our 
dwindling wilderness areas, and I have devoted a great portion of my life and my 
life's work to make sure that a respect for the land and the protection of our 
environment is a part of the legacy we leave our children. We have found that in 
order to foster this respject and protection, it has been necessary to enact laws. Many 
of you are acquainted with me in this role. 

I am, however, first and foremost, an artisan, except my tools are words and 
melodies instead of brushes and canvas. I cut, shape, refine, and position each \/ord 
and each note until I have crafted a song that I believe is true. My songs are an 
expression of who I am and what I stand for, and the laws which govern the results 
of my endeavors demand that people respect my work. The copyright law provides 
me with the right to protect my work from those who would otherwise compromise 
its integrity, who would exploit, abuse and mutilate my art. I do not allow my songs 
to be used in conjunction with advertising commercials, and I am extremely 
selective about other ancillary uses of my music in films and other projects. The 
law g;ives me this right, but or\ly for a limited time. 

No one would question my right to prevent someone from painting graffiti on my 
house or from stealing its contents. No one would question my right to benefit 
from its value or to ensure that my heirs benefit from its value. And if I were to 



242 



Page Two July 7, 1995 



design and build a house, instead of a song, I could own this house and would have 
the right to protect it throughout my lifetime. I woiild be able to pass this along to 
my children, and it would be theirs to pass to their children and so forth. 

But I don't make houses or other tangible property. I just make songs, and they can 
only belong to me and my family for a limited time. I can't erect a fence around my 
kind of property to defend against trespassers. As a creator of intellectual property, I 
must rely on the law for protection, both economic and artistic. 

As much as I believe that we are inextricably connected to one another in our 
individual and collective impact on the global environment, I also believe ours has 
become a global economy, and American creators should be accorded at least as 
favorable a protection at law as creators in other ccnmtries. We cannot chastise 
countries which do no provide as high a level of copyright protection as is provided 
under American law, when American law does not provide as high a level of 
protection as laws in other western countries, such as the European Community. 

I urge you to pass H.R. 989, to extend the maximvun protection to American 
intellectual property, to encourage the creative minds in America to continue to 
produce the songs, the plays, the books, the films, the photographs, the designs, the 
software - the art - that inspires the world. 

Thank you. 



243 

[The prepared statement of Mr. Menken follows:] 

Prepared Statement of Alan Menken, Composer 

I am sorry I can't be with you today to discuss the Copyright Term Extetision Act in person. 
However, the terms of the proposed act are very important to me both professionally and 
personally and I want to take this opportunity to make my position clear to the Members of the 
House. 

You may know me as the composer of Pocahontas . The Little Mermaid . Beauty and the Beast 
and Aladdin . I have made my living as a composer since my first musical-theatre shows God 
Bless You. Mr. Rosewater and Little Shop of Horrors and I've been fortunate enou^ to have 
received many awards for my work including six Academy Awards and nine Grammy's. While 
recognition of one's work is always gratifying, I am very concerned that the copyright protection 
of my work and the interests of my family receive the maximum possible protection. 

The basic theory of copyri^t duration is that protection should exist for the life of the author 
and tvvo succeeding generations. The life-plus-50 year term no longer offers that protection due 
to increased life expectancy and the tendency to have children later in life. On Jidy 1, 1995 the 
European Union will adopt a uniform term of copyright equal to life of the author plus 70 years. 
Because of the application of the rule of the shorter term, American authors will not baiefit from 
the extended term unless we enact copyright term extension legislation. 

The 20-year term extension is a modest proposal which will bring us in line with The European 
Union. I strongly urge you to join your colleagues in support of H.R. 989. 



244 

[The prepared statement of Mr. Sondheim follows:] 

Prepared Statement of Stephen Sondheim 
To whom it may concern - 

As a working songwriter/ former 
president and current council member of the 
Dramatists Guild suod member of AmSong, I am 
committed to the protection of U.S. 
copyrights, and so I regret that I am 
unable to attend the July 13, 1995 Hearing 
to voice my support for H.R. 989. 

The current term of copyright -- a 
fixed period of 75 years for pre- 197 8 works 
euid life plus 50 years for works written on 
or after Jeuiuary 1, 1978 -- no longer 
protects American creators for a reasonable 
period of time. All too often works have 
been falling into the piiblic domain during 
the author's lifetime (e.g., Irving Berlin) 
or the lifetime of the author's immediate 
successors, which is contrary to the intent 
of our copyright laws. H.R. 989 reflects 
the reality that life expectancy has 
increased by at least 20 years. 

The countries of Europe, and nearly 
every other civilized country, inclement a 
copyright term of life of the author plus 
70 years. Our copyright law should do 



245 



- 2 - 



everyt:liin9 possible to encourage Americem. 
creativity. A modest 20 -year term extension 
will further this purpose. 

I applaud Chairman Moorhead for 
introducing H.R. 989 suid urge Congress 
to enact the Bill this year. 



246 
[The prepared statement of Mrs. Mancini follows:] 

Prepared Statement of Mrs. Henry Mancini 

I regret that I am unable to attend today's Hearing on H.R. 989. 

I am Ginny Mancini. My husband was Henry Mancini, the songwriter. Since my husband's 
work became widely known in the early 1950's, it has become part of the fabric of 
American culture. 

I commend Chairman Moorhead for introducing the Copyright Term Extension Act of 1995. 

In light of the harmonization of copyright laws in the European Union, all European 
works will soon be protected for the life of the author plus 70 years. Some of my 
husband's best known works were written before 1978 and therefore are protected for a 
flat term of only 75 years. 

My husband always intended that his work would be a legacy for his children. Indeed, 
our children are actively involved in the business aspects of my husband's catalogue and 
insuring that his works continue to be available to the public. It is inconceivable that 
such works would go into the public domain at a time when our children will most need 
the support from the copyrights left to them by their father. It is particularly egregious 
because foreign works written contemporaneously with my husband's works will continue 
to be protected for 70 years beyond the author's death. 

Many persuasive arguments support a 20 year extension of our copyright. 

Copyright term extension is very much in the interests of the American economy as it 
relates to maintaining a surplus balance of trade in an expanding world marketplace and 
generating income tax revenues from American creators and copyright owners. Moreover, 
strong ethical concerns support the enactment of term extension legislation as a matter of 
justice for creators and their families. 

I urge the members of Congress to support H.R. 989, and its companion Bill S. 483, and to 
implement this legislation now. 



247 

[The prepared statement of Ms. Donaldson follows:] 

Prepared Statement of Ellen Donaldson, Donaldson Publishing Co., Vice 

President, AmSong 

I welcome the opportunity to express my strong support for H.R 989, The Copyright Term 
Extension Act of 1995, and to submit a statement for the record. 

On behalf of my family I wish to thank Chairman Carlos Moorhead for introducing H R 989 
I also thank the many co-sponsors of this legislation from the Subcommittee, Representatives 
Becerra, Berman, Bono, Clement, Coble, Conyer, Gallegly, Gekas, Goodlatte, Nadler and Schroeder. 

On March 10, 1994 I wrote a letter to the Acting Register of Copyrights Barbara Ringer, 
expressing my deep concerns and strong support for copyright term extension, explaining in detail 
the devastating consequences we and others face if Congress fails to enact such legislation. That 
letter is attached hereto as part of my statement 

We are just one of many music publishing families, writers and owners of pre- 1978 
copyrights with a fixed term of copyright of 75 years from date of registration, who face the imminent 
loss of our works (our livelihoods) to public domain while they still have a viable commercial life. 
The extent of such works varies widely among copyright owners: from those who have enormous 
song catalogues to those with catalogues of two or three income - producing songs who live quite 
literally from check to check in order simply to pay the rent or put a child though school. There are 
many writers and their families who do not share in publishing income at all and rely solely on the 



248 



writer's share of copyright income. 

Despite the intent of the 1976 Copyright law and the basic theory of copyright duration - that 
protection should exist for the life of the author and two succeeding generations- the fact is that the 
life -plus 50 year term and the term of 75 years from date of registration for pre- 1978 works no 
longer afford that protection, due to an increase in life expectancy Indeed, many authors' children 
are bom late in the authors' lives, often well past their most productive creative years An extension 
of copyright term by a modest 20 years would approximate this increase in longevity It would as 
well approximate the sustained popular appeal of such authors' copyrights. The rapid growth in 
communications media has substantially lengthened the commercial life of innumerable works. If we 
fall behind in protecting our own works at home, our domestic short sightedness will lead to global 
losses. 

The European Union, along with most of the developed countries of the world, have adopted 
a uniform term of copyright equal to life of the author plus 70 years or longer However, because 
of the E.U.'s application of "the rule of the shorter term," American copyrights will not benefit from 
this extended term unless Congress enacts copyright term extension legislation Without such 
legislation, foreign works will have far longer security in the rapidly expanding global marketplace; 
while American works will not be protected beyond the current (and inadequate) American term of 
copyright. Our works, upon which our livelihoods are based, will be irrevocably lost to public 
domain, virtually woridwide The question must be asked: Why should 20 extra years of protection 
(and income) be given away to the worid, free, at the expense of America's writers and copyright 
owners? 



249 



Copyright term extension is very much in America's economic interest. Along with our 
country's broad, vitally important concerns in maintaining the trade surplus we currently enjoy in 
the area of intellectual property, I respectfully urge this Congress to also consider the prospective 
loss of American culture, the loss of foreign and domestic income, loss of livelihood, and the 
concomitant loss of income tax revenues generated by its creators and copyright owners. 

We desperately need harmonization of international copyright laws. 

We need such legislation now. 

It is a matter of economics. It is a matter of trade. 

It is also a matter of justice. 



250 

Ellen Donaldson 

Los Angeles. California 90004 

March 10, 1994 

Ms. Barbara Ringer 
Acting Register of Copyrights 
The Library of Congress 
Washington, D.C. 20559 

Dear Ms. Ringer: 

This past December I was fortunate indeed to have 
attended the "U.S. Copyright Office Speaks" seminars in 
Los Angeles. I came away profoundly impressed. . .with the 
speakers from the Copyright Office, the complexity and 
analysis of the issues discussed, the clarity of the 
presentations. . .and with a renewed appreciation that such 
people make up one of the most important institutions in 
our country. One which affects the very foundations of 
our government generally. . .and which affects my family 
and me very specifically. 

At the seminars We were urged to respond to the 
issues under consideration in the Copyright Office... and 
how those issues would affect us. And so this letter. 

My father was Walter Donaldson (b.l891, d.l947) who 
wrote popular songs from 1915 to 1947... a gentle man of 
the "Tin Pan Alley" years, the early years of American 
popular music. (I have enclosed a song book for your 
information. ) 



251 



Ms. Barbara Ringer 
March 10, 1994 
Page 2 



My letter concerns the possibility of an extension 
of term of copyright, the effects of iituninent (in our 
case) Public Domain, and the truly disastrous effect of 
EU Copyright Law vs. U.S. Copyright Law. . .the conflicting 
International Copyright Laws... on my family's business, 
Donaldson Publishing Company, within three years time. 

Our company consists solely of, and is built upon my 
father's songs, most of which were brought into our firm 
at the Termination Period. 

If our company is to survive, an extension of term 
is imperative. As time is so critically of the essence, 
we urge you to initiate a moratorium until the issue can 
be fully studied and recommendations set forth. 

My concerns are complex. The issues about which I'm 
writing are complex. For the sake of clarity, I've 
chosen to focus on one song, but the circumstances are 
strikingly similar for all of the music in our catalog. 

In 1919 my father wrote, with lyricists Sam Lewis 
and Joe Young, "How 'Ya Gonna Keep 'Em Down On The Farm 
(After They've Seen Paree)", a song celebrating Armistice 
and the end of World War I, with wildly irreverent, 
peculiarly American humour... and a certain mad "take" on 
life after so much tragedy. Lt. James Reese Europe and 



252 



Ms. Barbara Ringer 
March 10, 1994 
Page 3 



his legendary syncopated brass band, The "Hellfighters 
Regiment" (369th Infantry Division) introduced it... in 
the Victory Parade, February, 1919, that welcomed 
President Woodrow Wilson home from Paris and the Treaty 
of Versailles preliminaries. . .to an uproarious, still 
grieving, celebratory and exhausted populace in New York 
City. 

The song marked a moment in time. It became, 
virtually overnight, a singular part of American culture 
and history. It still is . 

There followed many performances and many 
recordings, which have been regularly re-mastered and re- 
issued over the years. The song has become a musical, 
journalistic, commercial and literary catch phrase, often 
quoted, and (still!) often used in concerts, on 
television and radio, in films and documentaries. . .often 
to convey a sense of time and a sense of place to the 
generations that followed. . .at other times used in a 
whole other way to lend new meaning (for instance, a 
print ad by a Japanese company doing business in 
Paris. . . ) 

My point is: Still used , still there . After all 
these years. Not lost somewhere in "cyberspace". It is 



253 



Ms. Barbara Ringer 
March 10, 1994 
Page 4 



a small piece of the jigsaw puzzle of distinctly American 
intellectual property that helps define our national 
culture. It has been protected and promoted and always 
available. It has been of benefit to my mother, my 
sister and to me, as my father's direct heirs, because 
the song is still earning a very substantial amount of 
money for Donaldson Publishing Company . (we own the 
Donaldson share, which is 1/3 of the copyright) as well 
as for the heirs/publishers of the lyricists. 
(See II - Business History - attached.) 

I must add that we have granted synchronization 
rights... on a gratis basis... for this song and others, 
for use in historical documentaries aimed at libraries, 
museums, schools and Public Television. This seems 
appropriate to us; it is how we do business. 

This song, musically and lyrically certainly, but 
also because of its unique place in our cultural history, 
represents the cornerstone of my father's career and, in 
turn, of my family's publishing company, which is our 
livelihood. 

On December 31 of this year, "How 'Ya Gonna Keep 'Em 
Down On The Farm" is due to go into Public Domain, as 
have all of my father's songs from 1915-1918. 



254 



Ms. Barbara Ringer 
March 10, 1994 
Page 5 



I protest. 

The loss of this song, which I believe to be in 
conflict with the intent of the 1976 Copyright Law, will 
have a profound effect on our publishing company. It 
will also mark the beginning of the losses of our most 
valuable, income-producing copyrights: my father's music 
of the 20's, which forms the very core of our business, 
and will mark the beginning of the end of our publishing 
company, and my family's livelihood. Next year: "My 
Mammy"... in two years: "My Buddy" and "Carolina In The 
Morning". , .and on and on and on. . • 

I do not believe this was the intent of the 1976 
Copyright Law, although it is the effect. Who could have 
foreseen the ultimate beneficiaries of that most welcome 
law or the healthy longevity of U.S. senior citizenry. 
I believe the intent was that the term of copyright 
should be enlarged to cover the lifetime of the author 
and his immediate family. Yet here we are, my father's 
immediate family: my mother, in her 80 's; my sister, 59; 
and me, 55... all going strong, running a thriving 
publishing business, and facing a daunting prospect: the 
loss of our copyrights upon which our business is based. 
Surely the issue of current life expectancy must be 



255 



Ms. Barbara Ringer 
March 10, 1994 
Page 6 



reconsidered; yet another reason for a much needed 
moratorium until a final decision is made on extension of 
term. 

The current "market" is very healthy indeed for the 
old songs. I would venture a guess that it will continue 
to be healthy for at least another 2 years. The songs, 
because they are good, will continue to be used. Artists 
will be paid for recording them, records will be sold, 
vintage records will continue to be re-mastered, re- 
issued and sold, record companies will be paid, the 
stores selling the recordings will make money, an ad 
agency will use a song to sell its clients' products, a 
motion picture company will include it on a soundtrack to 
help sell tickets. But the creator's share, meant, 
according to the intent of the 1976 copyright law, for 
his heirs, will be left out. Everyone will benefit from 
the creator's work except his heirs. 

Further, and most seriously: It appears that the EU 
is moving toward extending its term of copyright to life 
plus 70 years. Germany has already done so, and 
apparently England will soon comply with the EU 
Directive. It is my understanding that Europe will not 
honor American copyrights with the same extension of term 



2Si6 



Ms. Barbara Ringer 
March 10, 1994 
Page 7 



unless the U.S. extends its term of copyright to be in 
accord; and that Europe will revert, for American 
copyrights, to a term of life plus 50 years. If that 
happens, it will be nothing short of catastrophic for us. 
It means: that in three short years, in 1997. 
virtually every single income-producing song in Donaldson 
Publishing Company and every song my father wrote alone, 
will go into Public Domain in every territory in the 
world with the exception of the U.S. (Please see list - 
I - attached.) 

The reasons? 

I. My father died in 1947; 1997 is the fiftieth 
year after his death. 

II. Most of his co-writers pre-deceased him. 

III. He was the sole author of many, many songs. 

It means: that our total income will be cut exactly 
in half, at the same time that our most important 
copyrights continue to go into Public Domain in the U.S. 

The importance of Europe, the UK and Canada to our 
business cannot be overstated. 

It is ironic that just now, when the old songs are 



257 



Ms. Barbara Ringer 
March 10, 1994 
Page 8 



in demand again throughout the world, the international 
market for music is expanding at a breathtaking pace, and 
scientific and technological wizards have made possible 
an Information Superhighway and a world of new markets 
for our music. It is ironic and heartbreaking that now, 
as the EU moves to extend the term of copyright in 
Europe, and now, in what promises to be a new "golden 
age" for American music, both old and new, and now, when, 
for the first time, it will be possible to earn a more 
substantial income from our old, classic songs on a 
worldwide basis. . . Now , our songs are rapidly going into 
Public Domain in our own country; and, in three years, 
because of conflicting International Copyright Laws, 
virtually an entire market, indeed a world of markets 
will be irrevocably lost to us forever . 

The finality of this is particularly Draconian for 
our family as we will no longer be able to claim 
ownership of my father's songs. 

An extension of the U.S. Term of Copyright and 
international accord in extension of Term of Copyright, 
would resolve the issue. Conflicting International 
Copyright Laws have a devastating effect on some of us. 
Indeed, eventually, all of us. 



258 



Ms. Barbara Ringer 
March 10, 1994 
Page 9 



My greatest fear is that the intent of the 1976 
Copyright Law has now become muddied with political 
rhetoric and conflicting interests that. . . surely! . . .can 
and must be resolved to everyone's benefit. 

Ms. Ringer, I have chosen to personalize this 
letter. I do not presume to speak for others in similar 
situations. However, I do know, from numerous private 
conversations with others, that they too will be 
profoundly affected by the term of copyright issue, most 
acutely those families with very small catalogs who are 
struggling to pay bills, and who live, quite literally, 
from check to check simply to pay the rent! We are 
suffering from "the law of unintended consequences". 
Dire consequences. Right now, that law seems to prevail, 
causing grievous harm to us. 

We are so grateful for the 1976 Copyright Law: 
grateful for the foresight, wisdom and perseverance that 
went into the writing of it. Believe me, it made a 
positive impact. The honorable intent implemented by 
that law is the basis of so much good for so many people! 

Now, in the 90 's, given the unexpected longevity of 
the immediate heirs to copyrights, the unexpected 
longevity and continuing popularity of the songs on which 



259 



Ms. Barbara Ringer 
March 10, 1994 
Page 10 



our businesses are based, the technological advances, and 
the terrifying effects of EU copyright laws, and faced 
with formidable challenges and opposition, we must 
preserve that intent . Our copyrights must be protected 
in foreign territories as well as in the United States . 
We must have an extension of term of copyright if our 
businesses are to survive. We must have a moratorium at 
the very least. 

There must be a way for the matter to be pursued to 
a more just conclusion for everybody concerned. 

Your wise counsel and advice would be most deeply 
appreciated. 

Thank you for your consideration and attention to 
this urgent matter. 

Sincerely yours, 

Ellen Donaldson 

Donaldson Publishing Company 



Honorable James H. Billington, 
The Librarian of Congress 
Charlotte Douglas, U.S. Copyright Office 
Mary B. Levering, U.S. Copyright Office 
Marybeth Peters, U.S. Copyright Office 
William Roberts, U.S. Copyright Office 
Dorothy Schrader, U.S. Copyright Office 
Eric Schwartz, U.S. Copyright Office 



260 



Ms. Barbara Ringer 
March 10, 1994 
Page 11 



cc: (continued) 

ASCAP: Marilyn Bergman, President 



Jack Beeson 
John Cacavas 
Cy Coleman 
Hal David 
Morton Gould 
Arthur Hamilton 
Wayland Holyfield 
Burton Lane 
John Mandel 
Stephen Paulus 
Stephen Sondheim 



Leon Brietler 
Arnold Broido 
Ronald Fried 
Nick Furth 
Donna Hilley 
Dean Kaye 
Leeds Levy 
Keith Mardak 
John McKellan 
Jay Morgenstern 
Irwin Robinson 



Fred Konigsberg, Esq. 

The Songwriters Guild of America: 

George David Weiss, President 



261 



I 

without an extension of U.S. Term of Copyright, in 
accord with the EU extension of Term of Copyright, the 
following songs, among others, will go into public domain 
in virtually every territory of the world outside the 
United States in three years, in 1997 ; 
My Buddy 

Carolina In The Morning 
Beside a Babbling Brook 
My Best Girl 
Yes Sir! That's My Baby 
That Certain Party 
I Wonder Where My Baby Is Tonight 
After I Say I'm Sorry 
Don't Be Angry 
Thinking Of You 
Where 'd You Get Those Eyes 
No More Worry in' 
He's The Last Word 
Sam, The Old Accordion Man 
At Sundown 
My Ohio Home 
My Blue Heaven 
Changes 

Because My Baby Don't Mean Maybe Now 
Out Of The Dawn 



262 



The entire score of the musical "Whoopee", including: 

Makin' Whoopee! 

Love Me Or Leave Me... among many other songs 

Kansas City Kitty 

Reaching For Someone 

'Tain't No Sin 

Romance 

Little White Lies 

My Baby Just Cares For Me 

Sweet Jennie Lee 

You're Driving Me Crazy 

Hello Beautiful! 

Without That Gal 

That's What I Like About You 

Ev'ning In Caroline 

Nobody Loves No Baby Like My Baby Loves Me 

My Mom 

Dancing In The Moonlight 

Hiawatha's Lullaby 

You've Got Everything 

Riptide 

I've Had My Moments 

Sleepy Head 

Okay Toots! 

An Earful of Music 



263 

When My Ship Comes In 

Clouds 

Why'd Ya' Make Me Fall In Love 

Fit To Be Tied 

etc., etc., etc... and every single song 

for which my father wrote both music and lyrics. 

(I have not listed the complete works.) 



264 

[The prepared statement of Mr, Schoenberg follows:] 

Prepared Statement of E. Randol Schoenberg 

I apologize for not being able to attend today's hearing on 
H.R. 989, The Copyright Term Extension Act of 1995, but appreciate 
that my views and the views of other heirs and copyright holders 
will be represented by AMSONG, Inc., of which I am a member. 

It is my understanding that the proposed bill will extend the 
term of copyright to 70 years after the death of the author, or 95 
years for pre-1976 works. The bill would bring the United States 
in line with the intellectual property protections offered by the 
European Community and other Berne Convention signatories. 

Beyond the obvious symbolic significance of a measure which 
would make the United States once again the world's leading 
protector (and producer) of intellectual property, copyright 
extension will greatly impact my family, as well as the families of 
many other composers and authors. 

My grandfather, the world-renowned Austrian-American composer, 
Arnold Schoenberg, came to this country in 1933 after being forced 
by the Nazis to abandon his position as the leading composition 
teacher at the Academy of Arts in Berlin, Germany. He worked and 
taught in Boston and New York, and from 1934 until his death in 
1951, in Los Angeles, where my family still resides. After his 
death, UCLA named its music building Schoenberg Hall in his honor, 
and use built the Arnold Schoenberg Institute to house his 
archives. He is generally considered to be the most important and 
influential composer of the twentieth century, and is called by 
some the "father of modern music." 

We are informed that, notwithstanding its longer copyright 
term, the European Community has decided not to recognize the 
copyrights of American authors and composers beyond the term for 
protection provided in the United States. If this "rule of the 
shorter term" were applied to my grandfather's works, many of them 
might lose their copyright protection in the year 2001. 

As you might imagine, our family receives a large portion of 
our royalty income from European performances. It would be a 
tremendous loss for us if in 2001 the European Community stopped 
protecting my grandfather's landmark American works, such as the 
Violin Concerto, the Piano Concerto, and "A Survivor from Warsaw" 
(which was performed at the opening of the Holocaust Museum in 
Washington, D.C.). 

The extension of the copyright term will assist the families 
who are the intended beneficiaries of the copyright term. Despite 
his importance in the field of music, my grandfather died in 1951 
with few assets aside from his artistic works. (He gave his 
letters to the Library of Congress, forming one of the most 



■ DOfUMENT*: 1^^112551 1. V I ;DAir..07/(lft/<(.>/nMl; 12 36 = 



265 



valuable collections in the Music Division.) He left behind my 
grandmother and three young children (age 10, 14 and 19) who 
survived primarily on copyright royalties. Today, our family 
continues to spend a great deal of time and energy promoting my 
grandfather's works and protecting his cultural legacy which is a 
treasured asset of the City of Los Angeles. 

My generation, the grandchildren, span from age 17 to 35. It 
would be a great loss if our family were not now able to reap the 
benefits of my grandfather's life's work, just as those benefits 
are coming to fruition. In serious music, even 70 years after 
death is sometimes insufficient. J. S. Bach's music had to wait 
almost 100 years after the composer's death before Felix 
Mendelssohn "discovered" it and proclaimed its greatness to the 
world. 

My grandfather wrote an essay in 1949 in which he challenged 
the philosophical underpinnings of the copyright term and 
questioned: 

why an author should be deprived of his 
property only for the advantage of shameless 
pirates, while every other property could be 
inherited by the most distant relatives for 
centuries. 

Indeed, there does not seem to be any sound reason for this 
disparity in the treatment of intellectual property from other 
forms of property. As the nations of the world lengthen the term 
of copyright, intellectual property is beginning to be placed on an 
equal playing field with other forms of property. This is as it 
should be. For the record, I have attached a copy of my 
grandfather's essay. 

For my grandfather, as with most serious composers today, the 
prospect of performances and recognition after his death was his 
only hope of compensation and support for his young family. Had he 
not had faith in the ability of his copyrights to support his 
family, he would not have been able to devote- the time that his 
groundbreaking work required. Certainly, The Copyright Term 
Extension Act of 1995 will be a further inspiration to those 
artists creating today, whose works are also not likely to receive 
their due during their lifetimes. 

Thank you for your support of this important measure. 



266 



COPYRIGHT 

'949 

The copyright law wa» oonsidered up to now m forbidding pinlca to ttoil sn 
luthor's property before a maximum of fifty-»ix yeai« tflcr its rc^tntion. After 
Ibis lime every pirate could uae it fiedy, moUng great piolita without letting the 
real owner 'participate' in the profitr of hit property, 

The moral which had created a'law of this kind seemed so low and unin* 
tciligibte that one always wondered in whose interest it was created, and why an 
lutiwr should be deprived of his property cmly for the advantage of shamelesa 
pirates, while every other property could be inherited by the most dtatant 
lelfttivcs for centurica. Nobody can prove that the lo per ccikt which the author 
—the creator, the real o>wncr of this property — would receive after the fifty -six 
years would have caused any damage to the public. Because* if a work is still 
sellable after fifty-six yeara^ die editions which a publisher prints can be so large 
that the cost of products decreases to 25 per cent ol the cost of the amsller 
editions. Accordioglyi the prices wittt the expiration of the 'proteclioa period* 
go down 60 per cent aiul nwre (as» for instance* the cases of Wagner and Brahms 
indicste). Accordingly, even at 60 per cent plus 10 per cent for the suthor, the 
public would buy the work for much less than durli^ the ^proteotiou period*. 

All this seems to be perfectly sensdeas and one can only think that it is 
maliciousness opunst the heirs of an author — while other hcira remaia un- 
molcatcdl 

Now I have discovered the true solution to thla problem: 

At the time when thn kw was msde there did not yet exisi the so-called 
'small rights'; there was not yet the radio, the movies, recordings, there was no 
payment for performanoe. At this time most authors sold their vrorks to s pub- 
lisher entirely, with all rights included. TWt participation of the suthors in 
royalties of sates, of rcntab, of pcifomunoes, rccordingSj radio, and movie 
transcriptions was not foreseen by the suthor nor by the publisher. I conclude 
that the law was not made to deprive the suthor of his property. 

It was msde in analogy to the pstent taws, admitting exduaive rights only 

4W 



267 



iOCtAL AND POLITICAL MATTBRB 



for a limited time. A publiilter, a manufactuKr was not considered an the only 
one who should pfofit Irom other people's creation. And especially in respect to 
the patent laws there are many interests which require protection. Never could 
it have become possiMe that everybody could trarel by railroad or steamship or 
posacas an automobile, if one manufacturer had the production monopolized. 
One should also here regret the poor inventor who seems to be damaged, fiul 
generally an inventor is forced to sell his patent to a powerful man, because he is 
unable to produce himaelf. If there were such a thing as 'Human Rights', he 
should be protected — though the risk of marketing a new invention is a great 
one, and seldom is an invention from the very beginning perfect enough to 
become a succeas. Think of all the improvements which were required to make 
an automobile as perfect as it must be. 

Such b not the case in th^ realm of copj^ght. A pubtisherV risk is not ts 
hrgt and he tuuaDy gambles on several numbers, ont of which might cover all 
possible losses. The publisher is seldom forced to mdce improvements. Generally 
the works are finished and ready to be sold. Still, if one had the monopoly, he 
would not reduce the prices, as Schott's and 8imrock's attitude proved, and 
therefore hia rights must be limited. He is still thereafter in the position to com- 
pete successfully with the pirates, especially if he improves his editions. 

It seems to me that this was the intention of the lawmakers. It is regrettable 
that they had no imagination to foresee at least some of the valuea which nught 
be added to a work, and that the)r worded this law so poorly that the wrong 
interpretation was pos«ble — that the law wanted to deprive the creator and 
serve the pirates. 

How it was possible to eittcnd this inisintcrpretation to toyahics, perfonn- 
anoe fees, recording fees, etc, ia entirely unintcll^ble. Admitting that the law* 
tnakera in whoae hands our destiny was delivered were unthinking and possessed 
no imagination, one is still surprised that nobody tried to find out for which 
purposes such a kw should serve, tn whose interest was it^ Is the interest of 
those t)eople to whom it b advantageous worthy of protection? Or b this law 
based on the same consideration as the law which protecta the criminal instead 
of the victim? 



49« 



268 
[The prepared statement of Ms. Durham follows:] 

Prepared Statement of Marsha Durham 

My name is Marsha Durham I am a daughter of Eddie Durham, an African/Indian American 
composer, writer, arranger, trombonist, guitarist and innovator of the electric guitar and of South 
Western Swing. When my father died in 1987 he left his estate to 4 children ranging in age from 18 
to 50 At that time, my father had 3 grandchildren ranging in age from 1 to 18 

I am a divorced parent of two young daughters. I receive no child support and rely on my salary as 
a paralegal and whatever income I derive from my father's estate to cover our household and 
education expenses. 

My youngest sibling, T. Edward, is a very talented musician in his own right, and now the father of 
two children. The small income he derives from my father's copyrights have allowed him to pursue 
the difBcult livelihood of the new songwriter. 

My sister, Lesa, who is at the beginning of her professional life and my brother, Eddie Jr , who is in 
retirement, similarly rely on their share of the small royalty income to care for themselves and their 
families. 

I should stress that the income we derive from my father's work is indeed small - a great deal smaller 
than would seem fair, given his extraordinary variation of musical talents and a great deal smaller 
than the legacy our father hoped to leave for his children and grandchildren. 

My father, like many jazz composers in the first half of this century, was often at the mercy of 
unscrupulous advisers. His lack of business sophistication caused him to lose many of the fruits of 
his creative labor and greatly diminished the royalties he and our family should have received over 
the past 65 years. 

For example, my father was the arranger of the world renown Glenn Miller classic "IN THE 
MOOD" However, he received nothing for his work beyond a very small one-time fee. The 
monetary loss from this one historical song is devastating to my father's legacy We similarly receive 
no compensation for " 1 O'CLOCK JUMP" which my father wrote for Count Basic 

The copyrights my father did manage to retain include "TOPSY", "GOOD MORNING BLUES," "I 
DON'T WANNA SET THE WORLD ON FIRE," "MOTENS SWING" and "LUNCEFORD'S 
SPECIAL " These songs were assigned to various publishers, and very little income has accrued to 
my father's estate. However, after many years of arduous research I am finally in the process of 
recapturing the rights to these songs for the final 1 9 years of copyright protection available under the 
1976 Copyright Act. I am hopeful that through careful management of my father's catalogue my 
brothers, sister and I will be able to recoup our legal expenses and to derive some revenues from our 



269 



fether's songs. The irony is, of course, that absent an extension of the term of copyright we will have 
only a few short years of income from these songs which should rightfully have been a source of 
income for my father, his children and his grandchildren for many years. 

On behalf of myself, my brothers Eddie Durham Jr. and T. Edward Durham and my sister 
Lesa Durham I wish to thank Chairman Moorhead for introducing H.R. 989 and to urge Congress 
to enact the Bill this year. 



270 
[The prepared statement of Ms. Miller follows:] 

Prepared Statement of Betty Kern Miller 

Dear Chairman Moorhead: 



I am the daughter and only child of the late Jerome Kern, 
and I have been following with great interest your proposal to 
extend the period of copyright protection in this country. I am 
grateful to you for having introduced legislation that would 
extend copyright protection in this country for my father's work 
and for all other intellectual property for an additional twenty 
years, and I urge you to continue to support that legislation and 
to attempt to have it enacted into law as soon as possible. 

My health has not permitted me to travel to New York to see 
the current successful revival of SHOW BOAT for which my father 
wrote the music, and it does not permit me to come to Washington 
for the hearing that is scheduled for July 13th. I wanted you to 
understand however, that my absence does not mean that I am not 
fully in support of the proposed extension of copyright and 
grateful to you for what you are doing in support of American 
copyrights . 

Writing with such wonderful lyricists as Oscar Hammerstein 
II, P.G. Wodehouse, Otto Harbach, Dorothy Fields, Johnny Mercer 
and Ira Gershwin to name but a few, my father wrote many of our 
best known and loved songs and musical scores . In addition to 
the score of SHOW BOAT, among the more than 1,000 songs he wrote 
are "Smoke Gets In Your Eyes", "All The Things You Are", "A Fine 
Romance", "The Way Your Look Tonight", "The Last Time I Saw 
Paris", "I'm Old Fashioned" and "Long Ago and Far Away". Under 
the current law his earlier works have been falling into the 
public domain each year for some time. For example, his songs 
"How'd You Like to Spoon With Me", "They Didn't Believe Me" and 
"Till The Clouds Roll By" are already in the public domain, and 
"Look For The Silver Lining" will fall into the public domain on 
January 1, 1996, if copyright extension legislation is not passed 
this year. 



271 



Honorable Carlos Moorhead 
July 7, 1995 
Page 2 



I urge you to extend copyright in this country as soon as 
possible, not only because of the economic considerations 
involved but also because of the lack of control that occurs when 
copyrights are permitted to fall into the public domain during 
the lives of the first generations of authors' heirs. The 
musical "SHOW BOAT" is still playing to hundreds of thousands of 
people throughout this country and the world, and yet it will 
soon fall into the public domain if copyright is not extended in 
this country, thereby ending our ability to control the quality 
of its many productions. Since my father died fifty years ago 
this year, his works will also begin to fall into the public 
domain in foreign countries unless we extend copyright so that 
foreign countries who give protection for seventy years after 
death to their own authors will grant that sairie protection to 
United States authors . 

I thank you again for the support that you have shown not 
only for the works of my father but also for the works of all of 
those whose work during this century has contributed to our 
American musical and literary heritage. 



r\ /» 



272 

[The prepared statement of Ms. Barrett follows:] 

Prepared Statement of Mary Ellin Barrett, Daughter of Irving Berlin 

First I want to thank Representative Carlos Moorhead for introducing H.R. 989, the Copyright Term 
Extension Act of 1995 AJl children of authors, not to mention authors themselves, should be 
enormously grateful to him. 

Obviously I, and those I presume to speak for, have a personal stake here and that basically is what 
I'm going to talk about ... the question of what is fair and right for the creative people of this country, 
and their heirs 

Because of my father's long life and young beginnings, his songs - most notably "Alexander's 
Ragtime Band" - began falling into the public domain more than a decade ago, before he himself died. 
.At that time his daughters were in their forties and fifties and his grandchildren (all but one) in their 
teens and twenties. Every year now more of those songs he hoped to leave as a legacy to those 
children and grandchildren become public property The past ten years have seen the loss of, among 
others, "When I Lost You". "When The Midnight Choo Choo Leaves for Alabam"'. "'Play A Simple 
Melody". "I Love A Piano ', "A Pretty Girl is Like a Melody", "You'd Be Surprised", all still money 
makers. There is also "Oh How I Hate to Get Up In the Morning ' which, like all my father's wanime 
army show songs belongs to the God Bless America Fund. (But that is a whole other story, the rich 
royalties he has given^way to his country) Next year "All By Myself, "Everybody Step", "Say It 
With Music" will go. and so it will continue year by year 

Yet the basic principal of copyright duration is that protection should exist for the life of the author 
and two succeeding generations My father began young but had his children relatively late - 
something that is happening more and more today 75 years from registration of pre- 1978 works - 
our situation - doesn't come close to offering that traditional protection. Nor, given today's life 
expectancy, does "'life plus 50 years" give proper coverage. 

So authors and their families will indeed suffer if works fall into the public domain while still 
commercially viable Someone - not the public - will be making money out of another person's 
property And there are many families much more at risk than the heirs of Irving Berlin - those 
whose catalo2ues are more concentrated in time, with a smaller number of huae continuinsj hits 



273 



And with the new uniform term of copyright adopted by the European Union - "life plus 70" - there 
will be further attrition. Because of the "rule of the shorter term", American authors will not benefit 
from the 20 year extension abroad unless we enact similar legislation here. (In the case of pre- 1 978 
works, it must become 95 years from registration). 

This, of course, brings up the much broader balance of trade issue. Intellectual property, I'm told, 
is America's second largest export. It won't only be individual composers, lyricists, film makers, 
playwrights, writer of fiction and fact, who will suffer but American trade as a whole. That all 
important question is one for trade experts to address. I am not an economist. 

My question, as the child of a creator, as a person who values the ans (and as a working writer), is 
simply this: why is my country, so protective of other kinds of property, so reluctant to recognize the 
rights of the creative variety'' 

Non-creative, non-intellectual, property can be handed down indefinitely, as long as each generation 
pays its death taxes. Land rich in natural resources, businesses based on manufacturing, clothing, 
cars, liquor, fortunes in real estate, etc etc etc, can be supporting a fourth, fifth, sixth generation. 
Why shouldn't businesses based on creativity have a similar right ~ or at least be guaranteed 
proteaion for the life of the author and two succeeding generations - which is what this bill, if passed, 
conceivaoly might do 



This as a question that troubles me greatly, beyond my own immediate interests, and those of every 
heir and living author who shares my gratitude for what you. Representative Moorhead, have 
proposed. 



274 

Mr. MOORHEAD. Well, thank you very much. 

Opponents of copyright term extension point out that there are 
a number of benefits to the public domain that will be lost or post- 
poned as a result of this legislation. How do you respond? Is there 
any public benefit in extending the copyright? 

Mr. Jones. I'm sorry, I didn't get the question. 

Mr. MooRHEAD. Opponents say that term extension will deprive 
the general public of certain of their benefits or at least postpone 
them, as a result of this legislation. How do you respond and is 
there any public benefit in extending the copyright? 

Mr. Jones. Well, the public benefit is cop3rrighted works usually 
are more available. The cost to the public stays exactly the same, 
and, also, it allows the estates to be involved in receiving the bene- 
fits of what the creators have left as their legacy, but the public 
I think will get more efficient programming possibilities and have 
access to people that are really concerned with all of the 
accouterments that it takes to make a piece of music become ex- 
posed and to grow. 

To me, copyright is in many ways like creative real estate, and 
it depends on — depending on the song — ^you were speaking about 
economics earlier. When we did the album "Thriller," the song, the 
value of the songs on that album to the various songwriters — there 
were nine songs in that. The songs were worth about $1.6 million 
each in terms of just each individual writer. That's just with one 
album. 

Mr. MooRHEAD. One of the things that people have been con- 
cerned about was that our works in Europe are not protected for 
the same length of time as we would protect the works of European 
authors in the United States. Is this a substantial economic switch 
as far as we're concerned? As far as the balance of trade, does it 
give the Europeans and other nations a big advantage of us 

Mr. Jones. A tremendous advantage. I'd cite examples. When 
records in America like "Thus Spracht Zarathustra," Richard 
Strauss was adapted because my teacher always told me that the 
melody is what lingers on, and that's always the power of a song. 
Even though they changed the rh3d:hms throughout the ages, when 
"Spracht Zarathustra" was released as a single in the United 
States, it was public domain. And when it was released in Europe, 
they still had to pay the estate of the Strauss estate for that par- 
ticular piece. 

They have a tremendous edge on us. I lived in Europe for a 
while. I was a member of SACEM. It's a sister of ASCAP, and BM 
is the sister agency of BMI. Michel LeGrande is one of my closest 
friends, and I'm embarrassed to have a conversation with him 
about our various setups. 

Mr. MOORHEAD. A while ago, the discussion centered on what the 
benefit would be for us in taxes, but there is also a benefit, is there 
not — as we bring more money into the United States, it percolates 
down in jobs and in investment, and so forth. So whether it gets 
into taxes or not, we have a real benefit in money coming into our 
country instead of going out, as it does with the purchase of so 
many foreign cars and the foreign equipment, and so forth. We 
need something to balance it. 



275 

Do you think extending the copyright, as we're trying to do here, 
will make a difference there? 

Mr. Jones. Yes, I do. I think it could be a strong factor in a 
young person determining whether they want to be a composer or 
a songwriter, very much so. 

Mr. MOORHEAD. Well, I have no further questions, but I'm sure 
that our ranking minority member of our committee, Pat Schroeder 
of Colorado, will. 

Mr. Jones. I just wanted to say one more thing. Probably in 3 
or 4 years all of the rules will have to be rewritten anyway because 
we are, as we step out of the industrial revolution century into the 
century of information and computers, it will be unbelievable. 

There was a question asked before about the Internet. It will be- 
come one global unit, and I can feel that already, the way we do 
interviews now and the way we would be doing them in 2000, when 
you do satellite interviews. Twenty years ago, when America had 
totally dominated the record field, we would have our records re- 
leased here and become hits, and 2 years later maybe they would 
be released in the European countries. Today they may come out 
in Europe before they come out in America. And it's become such 
a global and unified situation that it seems to me like it makes a 
lot of sense to have — ^at least be equal with our European counter- 
parts. 

Mrs. Schroeder. Thank you, Mr. Chairman, and thank you very 
much for being here this morning. 

Basically, what I thought I heard you sa5dng is public benefit 
doesn't seem to work because, even when there is no copyright, the 
price doesn't go down? 

Mr. Jones. That's right. 

Mrs. Schroeder. So that somebody is pocketing it? 

Mr. Jones. The wrong people are making the money. 

Mrs. Schroeder. The question is, who pockets it; right? 

Mr. Jones. Right, with the manufacturers. 

Mrs. Schroeder. And I think most of the consumers don't un- 
derstand any of this, so that they wouldn't know to look for a 
cheaper product because it's now out from under copyright. 

Mr. Jones. Right. That's the example with the Tolstoy book. 

Mrs. Schroeder. And that is really one of the issues that con- 
cerns you. Either we've got to get the consumer smarter and get 
the price down or you may as well keep the person who created it, 
give them the property right and let them get it. Somebody's being 
unjustly enriched. 

Mr. Jones. You're absolutely right, and I think that the main 
point is to inspire our young people to want to be in this field. It 
would be very easy to say it's not worth the trouble. It takes a long 
time to develop a musical background, and with some of my kids 
I try to discourage them from being in music because it's a very 
touch-and-go type of a profession and the first 30 years are the 
hardest. [Laughter.! 

And if you do happen to get lucky later on — ^but it's a very tough 
profession, and I think every type of encouragement should be 
right down front and there for them. 

Mrs. Schroeder. So your last 19 years have been great; right? 
[Laughter.] 



276 

But, basically, what the Constitution says about public benefit, 
because the idea being, then, after so many years then the whole 
public gets to share it — ^you're saying that that's not true; that 
what they had in mind when they wrote that in the Constitution 
isn't what's happening in today's real world. So I think that that's 
a very interesting point. 

I think the other point is we in this country tend to have cor- 
nered the creative market, not totally cornered it, but we have a 
phenomenal amount of creativity generating out of here. And if 
after a smaller number of years than in other countries people can 
pick that up freely in their country and use it, that that's also 
harming this country, where the creators are more apt to live. I 
don't know how you break that out, but I think I've seen numbers 
showing we've got more creative little minds living here on this 
continent than we have in other places. 

Mr. Jones. We do, and I think it's very ironic that, with the 400- 
or 500-year history of western music, out of all the possibilities — 
bagpipes, kabuki, string quartets, et cetera — that the youth of the 
entire planet have made the decision to adopt our music as their 
esperanto, all over the world. And it always fascinates me to go to 
these places, even Tahiti, and hear the same records that you hear 
in New York City. It's one of the most powerful exports that we 
have. 

Mrs. SCHROEDER. Well, just remember what Tip O'Neill said, 
though, that the Irish gave the bagpipes to the Scotch as a joke 
and they never figured it out. They thought it was real. [Laughter.] 

But, no, we thank you very, very much for being here this morn- 
ing 

Mr. Jones. Thank you. 

Mrs. SCHROEDER [continuing]. And appreciate your insight. 

Mr. MOORHEAD. The gentleman from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Jones, we're honored to have you here with us today. 

I want to comment on Martin's comment about why not forever. 
Martin neglected to state that he's an accomplished musician and 
pianist in his own right, and I'm sure he's happy to support this 
legislation so long as your sheet music will remain competitively 
priced so he can get it. [Laughter.] 

In asking that very question, I support this legislation. I think 
the extension is important to protect you and others who are cre- 
ators of wonderful works, and we want to encourage that creation 
by allowing you get to just recompense for your work, and I think 
that that ought to carry on for your children and your grand- 
children as well. 

I think the reason why not forever is that at some point in 
time — family trees tend to go like this [indicating], and at some 
point in time the number of ancestors of a great — I don't know how 
many Tolstoy has out there today, but if they all had to get to- 
gether and agree on how to handle the rights to his works, it might 
have at some point in time a stifling effect on the ability to pro- 
mote great works of past centuries, rather than a positive effect, 
which I think it does for the immediate ancestors. 

I wonder if you have any comments on that thought. 



277 

Mr. Jones. Well, I can't think of a situation where it hasn't been 
worked out when this type of legacy 

Mr. GrOODLATTE. But we have a limit. If you go back 10 genera- 
tions, you might have 200 or more heirs who would then all be po- 
tentially, depending on how wills were written, and so on, have the 
right to make a decision. 

Let me give you an example outside of this area. My wife's par- 
ents are both from Ireland and her father's father owns a beautiful 
little house that overlooks — it's in Galway and it overlooks Galway 
Bay and it's just absolutely fabulous. It sits there abandoned. It's 
a small two-room house. The view is worth a million dollars, but 
her grandfather had 10 children and they've had several children 
each, and we're not all that far down the line, but to figure out who 
owns that property and for somebody to take control of it and do 
something with it involves a huge legal task. So at some point in 
time it seems to me that having an indefinite and unlimited copy- 
right right that's passed on forever creates these kind of entangle- 
ments that could stifle the use of something beautiful rather than 
promote it. 

Mr. Jones. You're right, but it's a still a great concept. [Laugh- 
ter.] 

Mr. GrOODLATTE. Yes, well, 70 years won't do it. I support the leg- 
islation, but I would not support 

Mr. Jones. If we can start with 70, add 20, it would be a good 
start. 

Mr. GOODLATTE. We'll do it for 70 years plus your life, and you 
won't have to worry about it. [Laughter.] 

Thank you very much, Mr. Chairman. 

Mr. Jones. Thank you. 

Mr. MOORHEAD. The gentleman from Michigan. 

Mr. CONYERS. Thank you very much. 

Quincy Jones, it's a pleasure to have you here and to listen to 
you, and I keep thinking about all the impact you've had on our 
music and our culture. 

And what I'm thinking about is how we can build a system that 
encourages creativity, the creativity that you talk about and that 
has been referred to, to be so profuse in this country, because we're 
now in a time of cutbacks. Our cultural system is now being told 
that we don't need the National Endowment for the Arts; we don't 
need as much education programs. I hate to tell you this. Some 
have actually suggested abolishing the Department of Education, 
and education-wise we don't come up too high in industrialized 
countries of the world. We have a 25-percent rate of functional illit- 
eracy among adults in this country. Millions of youngsters in this 
century could have added much to our country, had they had an 
opportunity to go to school and to go as far as their talents would 
carry them. 

And so in a way, we need more cultural spokespersons to help 
us understand that you can't continue this stream of talent by re- 
ducing the Federal relationship to this. We have to have — particu- 
larly in my favorite arena, the jazz musicians have come through 
tremendous obstacles, the few that have made it. Many, as you 
know, go unnamed, unnoticed. There was no way they could take 
advantage of any royalties; that was out of the question. 



278 

And so I know that your presence here helps in this direction as 
well as in support of this important bill, 989. 

Mr. Jones. Thank you. I think we're so — it goes back to the ex- 
pression: how can I miss you if you never leave? And I think we 
are so rich in culture and we do not realize — we take it for granted, 
and we don't realize how much the culture plays a part in our life. 

I would like, just out of curiosity, to see what would happen if 
America had to experience 2 weeks with no music, with no film, no 
television, no books. We'll say books. Books will always be around, 
but without a sound. Ever3d;hing from the dentist's office to the ele- 
vators, to the radios, to television, to music, to records — there's a 
total absence of sound. I don't think we could stand it because it 
is the food for our soul, especially this country. That's why the 
world has adopted this music on such a large level, and it's one of 
the most important things. It saved millions and millions of kids 
from the urban situation, millions, and given them a way to see the 
light. 

Mr. CONYERS. And we want to try to make it better than it has 
been in the past. I mean, if we can't do that, then we're not living 
up to our mandate, and I think you have been doing all you can 
in that area to bring forward other young talents of all disciplines. 

And, you know, you mentioned this next century coming up. You 
know, with digital, the telecommunications, the recombinations of 
our new technology, it is going to make a whole different kind of 
playing field for all of the players 

Mr. Jones. I agree. 

Mr. CONYERS [continuing]. And you're right, this is just 

Mr. Jones. I totally agree. 

Mr. CONYERS. Unless we really begin to look at this more deeply 
than we ever have before, we'll end up sliding backwards instead 
of moving forward. 

Mr. Jones. Absolutely. And if — we've been very involved, very, 
very involved in the conversion technology, just out of curiosity and 
because of necessity really. This is a place where — this is a situa- 
tion where not — reading and writing is one thing, but a young per- 
son that enters into the 21st century who is not equipped to deal 
with this technology will be doomed before they start. There's no 
question about it. 

And I've been working with Allen Kay, who's one of the inventors 
of Mac I and Mac II. He's the Apple fellow. We've already proposed 
them coming up with another one called Mac Daddy III to get the 
kids interested in it, so they won't think it's authoritarianism or in- 
stitutionalized. 

It's very important that everybody come to this party because of 
what's happening online, and this technology will probably be one 
of the biggest changes in civilization since the industrial revolution. 
I'd bet my life on it. 

Mr. CONYERS. This subcommittee was in Hollywood recently 
holding hearings on this and related measures, and I couldn't help 
but notice — we visited a couple of studios, and I was very pleased 
to see that in some of our meetings there were African-American 
vice presidents of film companies; there was a general counsel. We 
went through one of the lots on a studio, and there was an African- 
American carpenter. And, you know, it's only a few years ago that 



279 

I could remember when trying to integrate the film industry and 
the movie industry, television, and the music industry was an 
awful experience. I mean, the battles — and I don't mean to suggest 
that it's over, but there has been movement in this direction. And 
I think that it's very important for the country itself, and also for 
the creative experience that you've referred to so much here. 

Mr. Jones. I agree with you, and I appreciate the compassion 
and understanding and attention that's been given this. It will 
drive the next century; there's no doubt about it. 

Mr. CONYERS. Well, I'm happy that you've come here in this re- 
gard, and I hope that we will continue to hear some of the wonder- 
ful contributions that you've made. You've now crossed over into 
television and other kinds of activity, but I suppose the creative 
urge never leaves. I certainly hope it doesn't in your case. 

Mr. Jones. Thank you. 

I'll close with this. I keep remembering that the entire entertain- 
ment business is about six things: the song, the song, the song, and 
the story, the story, the story. That's all it's about, the whole thing. 
[Laughter.] 

Without those two things, there's nothing to talk about. That's 
what hires millions of people. You don't call them, directors or ac- 
tors or musicians or anything, until you have a song or a story. 

And I think I would appreciate all the support you can give me, 
NEA, and anything that fosters the arts in America, because it is 
part of our heartbeat; it's part of our soul, a big part of our soul. 
And we dominate it; we really do. We do it better than anybody in 
the world, all of America. 

Mr. CONYERS. Yes, thank you very much. 

Mr. Jones. Thank you. 

Mr. Gekas [presiding]. Thank you, Mr. Jones. 

Your "Eyes of Love" I think is one of the most exquisite composi- 
tions of our time. You continue now to receive royalties from that, 
do you not? 

Mr. Jones. Yes. 

Mr. Gekas. And you will through the life of the cop5n'ight that 
is now accorded you as the composer of that number, and the pric- 
ing of whatever use is made of "Eyes of Love" takes into account 
the royalties to be paid to you, does it not? The marketplace, in 
producing, wherever it does, a reissuing or reproduction of "Eyes of 
Love," has to price it in such a way that they know that part of 
it has to go to you, the composer; isn't that right? 

Mr. Jones. That's right. 

Mr. Gekas. So the marketplace still works within the confines of 
the copyright world. The reason I'm asking that is, Beethoven, the 
example that you gave, which is in the public domain, itself is gov- 
erned by the marketplace. It appears from what you tell us that 
the demand is still there for Beethoven; therefore, the pricing can 
be even higher than for the "Eyes of Love," for example; is that cor- 
rect? 

Mr. Jones. That's right. That's right. 

Mr. Gekas. Well, you don't have any quarrel with that, do you? 
You don't have any quarrel with the fact that the marketplace still 
gathers in a large demand for Beethoven or for public domain 



280 

Mr. Jones. No, I don't have any quarrel with that at all. I just — 
when we reduce the time down to — we're speaking in increments 
of 70 and 80 years, is a big difference from the 500 years. Bee- 
thoven was, without a doubt, one of the geniuses of our time, of 
that time. And I have the same feeling that in 100 years from now 
in America — we probably are the least informed about our own 
music — I promise you that Louis Armstrong and Count Basie and 
Duke Ellington and Charlie Parker will be recognized as the same 
type of genius, because jazz is the classical music of the world. 

Mr. Gekas. The only other question I'd have — I'd like to enlist 
your aid. I wrote a piece a long time ago for the oboe. [Laughter.] 

Mr. Jones. You did? 

Mr. Gekas. I don't know if the marketplace is going to be able 
to accept this. So I'll need your help on this. [Laughter.] 

Thanks very much. 

Mr. Jones. Thank you. 

Mr. Gekas. This hearing is recessed for 10 minutes. 

[Recess.] 

Mr. MOORHEAD [presiding]. Our first witness in the third panel 
will be John Belton, who is a professor of English and film at Rut- 
gers University. Professor Belton holds a bachelor's degree from 
Columbia University in Greek and Latin, and both a masters and 
doctorate from Harvard University in classical philosophy. He's the 
former Chair of the Task Force on Public Access and Education 
Use of Motion Pictures of Society for Cinema Studies and a mem- 
ber of the Film Preservation Hearings Board of the National Film 
Preservation Board, the Library of Congress. He's written exten- 
sively in the area of cinema studies and is here today representing 
the Society for Cinema Studies. 

Welcome, Professor Belton. 

Mr. Belton. Thank you. 

Mr. Moorhead. Our second witness on the third panel will be 
Dennis S. Karjala, professor of law at Arizona State University Col- 
lege of Law. Professor Karjala holds a bachelor's degree from 
Princeton University in electrical engineering and physics, a law 
degree from the University of California at Berkeley, and a doctor- 
ate from the University of Illinois. He teaches and researches copy- 
right law. He was a Fulbright Senior Research Scholar at the Max 
Planck Institute in Munich, Germany, studying the implementation 
of the European Union's directive on the copyright protection of 
computer software. 

Welcome, Professor Karjala. Am I pronouncing that right? 

Mr. Karjala. Karjala. Thank you. 

Mr. Moorhead. Our third witness on the third panel is William 
S. Patry, associate professor of law at the Benjamin N. Cardozo 
School of Law of Yeshiva University. Mr. Patry served as counsel 
to this subcommittee and as policy planning advisor to the Register 
of Copyrights. He is editor-in-chief of the Journal of the Copyright 
Society of the USA and has written several treatises and law re- 
view articles on copyright law. 

Welcome, Professor Patry. 

The fourth witness on the third panel is Jerome H. Reichman, 
who is a professor of law at Vanderbilt University where he teach- 
es intellectual property law. Professor Reichman holds a bachelor's 



281 

degree from the University of Chicago and a law degree from Yale 
University. He currently serves as chairman of the Intellectual 
Property Section of the American Association of Law Schools and 
is a member of the Copyright Society of the USA. He has served 
as an advisor to the Office of Technology Assessment and helped 
to prepare that body's 1992 report to Congress on computer soft- 
ware and intellectual property. 

Welcome, Professor Reichman. 

We have written statements from our four witnesses, which I ask 
unanimous consent to be a part of the record. I ask that you all 
summarize your statements in 10 minutes or less. All being law- 
yers, that's hard to do, I know. [Laughter.] 

I ask that the subcommittee hold their questions for all four wit- 
nesses until they've completed their oral presentations, and we'll 
begin with the testimony from Professor Belton. 

STATEMENT OF JOHN BELTON, PROFESSOR, RUTGERS UNI- 
VERSITY, ON BEHALF OF THE SOCIETY FOR CINEMA STUD- 
IES 

Mr. Belton. Thank you, Chairman Moorhead. 

I guess I should say I'm not a lawyer, so maybe I can be briefer 
than my colleagues. I represent an organization of academics, the 
Society for Cinema Studies, which teaches film and television in 
colleges and universities around this country. 

First, I might begin with prefacing my testimony by suggesting 
that there is a very simple answer to the question of the day about 
perpetual copyright, and it can be done without increasing term 
limit. All you have to do is live forever. 

One of the points that I think that whole idea raises is the sort 
of conformity with other standards and terms, and so forth. And if 
you just think for a minute about the arbitrary terms that come 
with life-plus-50 or life-plus-70, you realize that cop5n-ight terms 
can be very, very short. Think of Buddy Holly, for example, as op- 
posed to Irving Berlin, a man who died in his twenties, a man 
who's tried to live forever. And I think these need to be weighed 
when we talk about conformity in cop3nright law, that there really 
is no conformity of term in copjrright law. But I'm speaking as a 
lawyer, so I should stop that. 

What I'm going to talk about specifically is the proposed legisla- 
tion as it relates to works-for-hire; in particular, motion picture 
and television works, and I have very little to say about protection 
for authors. The proposed legislation actually fails to distinguish 
between works made for hire and works protected by authors. It 
awards a 20-year extension to both works produced by authors and 
works made for hire. One of the reasons I think that the 20-year 
extension figure came up was that it would provide authors and 
their immediate heirs for two generations with extended copyright 
protection. Works-for-hire are made by corporations. Corporations 
have a life expectancy that is not determined by human longevity. 
There is, therefore, no need to increase the copyright term for 
works made for hire using the logic that's being used for works pro- 
duced by flesh-and-blood authors. 

One of the — I guess the other issue that I think needs to be ad- 
dressed when I'm talking about conformity is that appeals are 



282 

made to the European Community and the way in which the Euro- 
pean Community has structured its provisions of Berne in regard 
to this new copyright procedure. However, within the European 
Community works-for-hire, if they exist at all — I've done some re- 
search on this — suggest to me that cinematic works in England and 
France, and so forth, are protected for 50 years. The United States, 
actually with its current legislation, protects works-for-hire for 75 
years. It is in excess of the European Community. I see no point 
in extending protection of works-for-hire to 95 years, given that 
there is no European precedent for the 95-year figure. It seems to 
me that we're sort of moving too fast in an escalation of term ex- 
tensions that do not need any further escalation. 

One of our concerns is, again, speaking in kind of a disinterested 
way — in other words, we're not copyright holders; we have no fi- 
nancial interest in the proposed legislation, but we are users of 
copyrighted material, and there is some question about the impact 
this will have on the public domain. You'll hear extensively, I 
think, more about theories of copyright law and the delicate bal- 
ance that exists between a limited monopoly which protects the 
copyright holder and eventual dissemination and spread of intellec- 
tual ideas to the public, which benefits the public. 

In this term extension, there seems to be no real impetus for cre- 
ativity, which is one of the reasons that copyright protects authors, 
is to spur their creativity — in this particular instance, for works- 
for-hire. Authors may decide to produce works to benefit their im- 
mediate heirs for several generations. A corporation does not make 
works with an eye to some sort of successive corporation. The mo- 
tion picture industry, for example, has a very short playoff of its 
properties that last from 2 to 5 years. 

This will include theatrical revenues, sale to cable, sale to video, 
sale to network, and syndication. After that the film becomes part 
of their library of works, one of their assets. Any moneys made 
from a motion picture while it is in the status of an asset is pure 
gravy. This is not the incentive which drives the production of new 
works. So the logic that can be used to talk about the copyright law 
as a spur to creativity really does not apply at all to works made 
for hire. 

On the other hand, works that fall into the public domain become 
a very valuable resource for new creations, and this is an argument 
that's been made again, but I will give you one or two examples. 
I think one of the most forceful copyright holders is the Disney Cor- 
poration. Yet, a great majority of their animated films are based 
on stories that come from the public domain. You can go back to 
"Snow White and the Seven Dwarves," "Pinocchio." More recently, 
we have "Little Mermaid," "Beauty and the Beast," "Aladdin," and 
"Pocahontas." And without this kind of well of source material, a 
kind of cultural matrix of property that Disney very much needs, 
depends upon, these great animated films of the last few years 
would not have been made. 

The same thing could be said for live action films. Kenneth 
Brannagh has made two adaptations of Shakespeare films, "Henry 
V," "Much Ado About Nothing." Martin Scorsese has recently 
adapted Edith Wharton's "Age of Innocence," and Agnieszka Hol- 
land has done an adaptation of "The Secret Garden," and so on and 



283 

so forth. "Little Women" was mentioned earlier. And we have 
Gillian Armstrong's recent version last year of "Little Women." 

But the real problem with the term extension in terms of the 
way to fix the public domain is that in 1976 the term was extended 
19, 20 years, whatever it is. It's proposed that it be extended again, 
just as that term is about to run out. Will there be yet another pro- 
posal within 20 years when this term is about to run out? In other 
words, what kind of logic is driving this. 

I understand the desire of copyright holders is to extend their 
copyright protection in perpetuity, but, again, this necessarily must 
be balanced against the, what I would say, larger needs of culture, 
which has not been mentioned much here today; education, which 
has not been mentioned at all today. So that the financial rewards 
that come to creative artists, who are actually casted, unfortu- 
nately, in the role of people who want to make more money out of 
their works rather than people who are artists who are creative be- 
cause they have to be. So I want to readdress this issue to suggest 
that this balance between financial rewards and our responsibility 
as citizens, the culture as a whole, must necessarily be regarded. 

One of the problems with granting extension of 20 years to mo- 
tion pictures and television works is that the American film indus- 
try has been a notoriously poor custodian of its copyright materials. 
Most of you know that up until 1950 over 50 percent of all Amer- 
ican films perished. We're talking about a term of extension that 
sort of begins in 1919 and goes to the forties or something. If you 
look at that period of silent films of the twenties, only 20 percent 
of all those films survived. This is because the studio said, "We 
have sound. These silent films are economically worthless to us. We 
will junk them," and that's, indeed, what happened. These films 
have deteriorated in studio vaults or been dumped in the Pacific 
Ocean. 

It's been the public archive, on the other hand, that has taken 
the initiative over the course of the copyright protection of actually 
funding — perhaps they shouldn't have funded with public funds — 
the preservation of some of these copyrighted works. It's only been 
in the last 10 years, with the advent of aftermarkets of video and 
cable, that the motion picture industry has taken a very, very ac- 
tive role in preserving its own assets. 

One of my concerns is preservation and access. I'm a member of 
the National Film Preservation Board. And although it's not appro- 
priate to talk about this in the context of copyright, it seems to me 
that, if extended term is to be given to motion pictures and other 
audiovisual material, there ought to be some assurance that these 
materials would not suffer the experience that it had in the past; 
that it would be preserved, and that there would be reasonable ac- 
cess to it. 

As educators, our problem is reasonable access, and I have a 
whole document, anecdotal evidence of just how difficult it is to get 
reasonable access to copyrighted and uncopyrighted materials, 
which is in the record, but it is not trivial, the problems that are 
faced by educators in trying to pass on the culture of the moving 
image to our students. 

And I think that the extension of rights to copyright holders in 
this particular instance is not necessarily going to help us at all; 



284 

that quite often the pubHc domain is in some ways— faciUtates the 
availabiUty of certain kinds of films that's not worth the studio's 
time and effort to make available. 

I see my time's run out. So I should stop here. 

[The prepared statement of Mr. Belton follows:] 



285 



Prepared Statement of John Belton, Professor, Rutgers University, on 
Behalf of the Society for Cinema Studies 

Introduction 

Founded m 1959, the Society for Cinema Studies is a professional 
cr-ranization of college and university educators, filnunakers, 
sc.'.olars, historians, and others concerned wiuh the study of the 
moving iniage and recorded sound. Memoership of the Society currently 
r.urr.bers xore than one thcusar.d . Activi-ies of the Society include 
"he organization of an annual conference that is regularly attended 
cy over 60C participants and .he publication of Cinema Journal , a 
quarterly magazine devotee to film and television studies. The 
Society has established e number of ccmmitTzees to deal with issues 
related co our field; these include a moving image archive policy 
committee and a committee on the preservation and access of film, 
radio, end video/television materials for research and classroom use. 
3C3 is also an active member cf the National Film Preservation Board. 

Comments and Rationale 

The Society offers the following comments on the proposed extension 
of copyright protection. These comments are concerned chiefly with 
the proposed legislation's application to motion pictures and other 
audio-visual media. They seek to address issues of term extension as 
they relate to works made for hire: 

1. The proposed legislation fails to distinguish adequately between 
different kinds of works. 

Copyright law has established distinctions between works created by 
individual authors and works made for hire. .^Vrguments in support of 
this proposed legislation ignore those distinctions. The principles 
of authorship that prevail in other art forms, such as painting and 
literature, cannot be naively applied to the cinema and other audio- 
visual media. The works of individual artists and authors are being 
considered for extended protection in large part because of the 
hardship that surviving family members might endure without continued 
income from these works. However, this argument cannot be applied to 
works made for hire, such as motion pictures and television programs, 
which are copyrighted by large corporations. A corporation cannot be 
compared to surviving family members nor can it be said to experience 
individual hardships. Corporations are, by definition, not 
individuals but collective entities established for the pursuit of 
certain kinds of business ventures. The claim of "natural right" as 
authors should not be extended to corporations. 

2. The proposed legislation would impoverish the public domain as a 
source for new works without providing any clear compensating 
advantages. 

Copyright protection is designed to encourage creativity by 



PTi-Ofa Qfi _ 1 n 



286 



granting artists and authors a limited monopoly; it gives authors 
exclusive rights to exploit their own work. The proposed addition of 
twenty years of copyright protection may encourage future creativity 
on the part of individual authors who wish to provide a livelihood 
for themselves and their immediate heirs. Indeed, one reason given 
for extending the term from "life plus fifty" to life plus seventy" 
is the projected increase in the human life span. Thus the post 
mortem auctoris term of seventy years should protect two generations 
of descendants. Again, the logic used to arrive at the proposed 
twenty year extension of present protection cannot be applied to 
works made for hire. Their "authors" are corporations whose "life 
span" is not changed by increases in human longevity. 

Works made for hire are currently protected for a term of seventy- 
five years. The new legislation proposes an extension of twenty 
years to give corporations a "limited monopoly" of ninety-five years. 
The argument that has been used to support this extension has been 
the need for international conformity. Yet, since the Copyright Act 
of 1976, American works for hire have enjoyed a longer period of 
protection than their European counterparts. The Berne Convention 
established a term of fifty years of protection after publication for 
cinematographic works.' Have we suddenly entered an international 
term-extension race where our seventy-five has forced the Europeans 
to abandon their fifty for a new ninety-five? Is there a reason for 
the new numbers? On what needs are they based? 

The extension of copyright protection can have no impact as a 
stimulus for creativity in terms of existing works. This argument 
cannot be used to justify a retroactive term extension for existing 
works. These works already exist, produced under different 
incentives and constraints. It is not clear that the proposed change 
for works made for hire from seventy-five to ninety-five years will 
measurably increase creativity. The corporations that produce motion 
picture and television programs operate on a short-term financial 
basis. Their incentive for the publication of these works is far 
more immediate in terms of rewards. They need to recoup their costs 
and make a profit during their initial play-off, which runs from 
roughly two to five years and includes a film's initial theatrical 
release, its sale to cable, its marketing on video, its sale to 
network television, and its syndication. After its initial play- 
off, a film becomes an "asset" in the corporation's library of 
holdings. Any profit that it generates after its initial play-off is 
pure gravy and has little or no relation to the initial incentives 
which led to its production. 

The extension of copyright poses a threat to the concept of public 
domain, which lies at the basis of copyright law. The United States 
Constitution has given Congress the power "to promote the progress of 
science and useful arts by securing for limited times to authors and 
inventors the exclusive right to their respective writings and 
discoveries."^ As the Supreme Court noted, the concept of a limited 
monopoly encourages and rewards creativity on the one hand while 
assuring that the work will ultimately enjoy widespread public 
availability.' The public domain is designed to function as a vital 
source for new works. Indeed, Disney, one of the corporations that 



287 



will benefit from term extension, has based a number of its recent 
works on public domain stories. This goes back, of course, to Snow 
White and The Seven Dwarfs (1937), but includes The I,it~le MerT.aid 
(1989), Beauty and tae Beasi: (1991), Alladin (1992), and Pocahantas 
(1995). Within the last few years, Kenneth Branagh has adapted two 
Shakespeare plays, Henry V and Much Ado .About Nothing ; Martin 
Scorsese has brought Sdith Wharton's kae of Innocence to the screen; 
Gillian Armstrong has filmed Louisa May Alcott's Little Women (1994), 
and Anieszka Holland has made Frances Hodgson Burnett's The Secret 
Garden (1993). Term extension will impoverish che public domain and 
poses a threat to the spirit of copyright law. In 1976, terms were 
extended and this came at the expense of the public domain. Just as 
those earlier extensions are now about to expire, it is proposed that 
they be extended yet again. Will additional term extensions be 
proposed twenty years from now? Copyright holders naturally wish to 
extend their rights, but successive extensions of copyright terms 
will undermine--or perhaps even destroy — the concept of public domain 
and the rights of the public. 

3. The proposed legislation fails to consider the needs of users of 
copyrighted material. 

Lengthening copyright protection would have a significant impact on 
users of copyrighted and public domain works. As educators and 
scholars, we are concerned that this material will be increasingly 
difficult to obtain for scholarly and classroom use. As part of the 
nation's cultural heritage, such documents should be preserved and 
studied by disinterested scholars and educators rather than hoarded 
by copyright owners who may have little regard for the public good. 
If copyrighted material is never made available for use, that 
material has effectively been repressed or censored by its owners. 
This is especially critical for motion picture and televisions works. 

With the publication of a book, copies are sold to the public; some 
copies are deposited in libraries. If that book goes out of print, 
copies continue to survive in libraries and can be obtained by users 
(via inter-library loan if your local library does not have it). 
Motion pictures and television programs are not made available in the 
same way. Copies of these works on film are not sold. Nor are they 
deposited at libraries. Even the Library of Congress, which once 
required two deposit copies of motion pictures, now returns deposit 
prints at the request of the depositor. If motion pictures or 
television programs have been deposited at the Library of Congress or 
at a public archive, they can be studies on the premises. But they 
cannot be used in the classroom or screened in theaters without the 
permission of copyright holders. 

Traditionally, copyright holders have not readily make films and 
other materials available for educational or scholarly use. Or, if 
access is given, the costs involved have been prohibitive. It is not 
cost-effective for Hollywood studios, television networks, and large 
distributors of television programs which make their profit from the 
mass market to serve educational needs. Consequently, they 
frequently refrain from providing educators with ready access to 



288 



culturally important audio-visual materials. Hundreds of American 
films 'ire no longer available for classroom rental in 16mm or 35mm. 
"or eximpie, existing 16mm crpies cf Alfred Hi"C".cccI< ' s 1943 classic 
Shadow of a Doubt vere recently discovered to be some damaged chat 
they had to be destroyed and the distributor consiiered it to be too 
expensive to strike new prints. However, small distribution outlets 
that deal in public domain films have learned how to make a profit in 
this market. Hundreds of little-known films that educators would 
like to jse in classrooms that will never find their way to 16mm 
distribution or even video if the copyright term is extended. A 
similar situation exists with regard to other audio-visual materials. 
The more films that fall into the public domain, the more early 
cinema, silent films, and historically important, early sound movies 
will be available for educators to use in the classroom. 

Historically, motion picture studios have not been responsible 
custodians of their property. Half of all American films made before 
1950 no longer exist, having been left to deteriorate in studio 
vaults. For the last decade of silent films (the 1920s), the 
statistics are even worse: only twenty per cent of these survive. 
Only in the last ten years, with the expansion of video and cable 
markets, have many of the studios taken steps to preserve their 
holdings. This has also been the case for many television networks 
and large television production companies. In the past, it has quite 
often been the public archives, not the studios, that have taken on 
the task of preserving our moving image heritage. To give the 
studios an additional twenty years of copyright protection over 
material that many of them have ignored for seventy-five years or 
more is inappropriate. If the owners of works for hire secure these 
additional rights, they should at least be required to preserve and 
make available all titles that fall under this proposed legislation. 
As users of copyrighted material, scholars and educators remain 
concerned about the preservation of and access to these works. Any 
new legislation should attempt to ensure that additional rights 
copyright owners are accompanied by additional responsibilities of 
these owners to the public. 

Even when copyright owners do grant educators permission to use 
their materials, they frequently set forth policies that make access 
text to impossible. They may charge prohibitively high rates or 
establish unnecessarily onerous conditions for their use. For 
example, Hollywood studios have often demanded exorbitant fees or 
unreasonable conditions for the use of stills and frame enlargements 
which serve as evidence in scholarly arguments and teaching tools in 
textbooks. In one instance. Paramount requested a payment of $20,000 
from an educator for the use of several frame enlargements in a 
textbook published by a university press. Columbia Pictures has 
cranted requests to reprint photos from its films at exorbitant terms 
'3500 per photo) and insisted that scholars secure releases from all 
those depicted in the photo. In a similar case, CBS insisted that a 
scholar publishing an essay in Cinema Journal dealing with visual 
style in television soap operas secure releases from all those 
lepicted in the photos. .As educators, we realize that much of our 
jse of copyrighted material is protected by fair use provisions of 



289 



copyright law. However, the principle of fair use remains ambiguous, 
decided in court by judges on a case-by-case basis. Copyright owners 
tend to define the principle of fair use very narrowly and threaten 
those who reproduce even the smallest part pf a copyrighted work, 
such as a frame enlargement, with expensive lawsuits. Given this 
sort of intimidation and the potential expense of going to court 
against large corporations, educators and university presses are 
reluctant to test the limits of fair use in court. 

The proposed copyright extension also effects unpublislied works, 
such as studio papers, production information, correspondence, 
stills, and other materials. These materials were to enter the 
public domain in 2002. The new legislation proposes to shield tliem 
for an additional ten years. Extended protection of these materials 
will restrict future film scholarship. 

Conclusion 

Scholars and educators have unique problems which are not addressed 
by the proposed legislation to extend the period of copyright 
protection. The proposed copyright extension threatens to strengthen 
the rights of copyright holders in ways which we find to be 
problematic. Even if term extension is deemed desirable for certain 
works, it is not necessarily desirable for other kinds of works, such 
as motion pictures or television programs made for hire. A copyright 
extension will do little or nothing to spur creativity in the making 
of new films and other audio-visual works and will have an adverse 
effect on the production of new films based on public domain works. 
Most importantly, by limiting our access to documents of cultural and 
historical significance it will seriously hamper the mission of 
educators as custodians and transmitters of our national moving image 
heritage. 

submitted by John Belton 
Notes 

1. Silkie von Lewinski, "EC Proposal for a Council Directive 
Harmonizing the Term of Protection of Copyright and Certain Related 
Rights," lie, 23, No. 6 (1992), 787. 

2. Quoted in "Who Will Set the Tolls on the Information 
Superhighway," unpublished comments by David Pierce of the 
Committee for Film Preservation and Public Access (November 29, 
1993), 9. 

3. Twentieth Century Music Corporation v. Aiken, 422 U.S. 151, 156 
(1975). 



290 

Mr. MOORHEAD. Professor Karjala. 

STATEMENT OF DENNIS S. KARJALA, PROFESSOR OF LAW, AR- 
IZONA STATE UNIVERSITY, ON BEHALF OF THE U.S. COPY- 
RIGHT AND INTELLECTUAL PROPERTY LAW PROFESSORS 

Mr. Karjala. Thank you. I want to thank the chairman and the 
members of the subcommittee for inviting me to testify today. I will 
present my views on this legislation and those of a great number 
of my academic colleagues who work and conduct research on a 
daily basis in the areas of copyright and intellectual property. Our 
comments are based on a familiarity with the subject matter and, 
we believe, a sensitive understanding of how copyright has tradi- 
tionally sought to balance competing public and private interests. 

I'd like to begin with a few words about American copyright phi- 
losophy and tradition. The special genius of the U.S. copyright sys- 
tem has been its emphasis on an appropriate balance of these pub- 
lic and private interests. Our system has been remarkably success- 
ful in promoting the creation of economically and culturally valu- 
able products, particularly in the copyright industries like movies, 
music, and computer software. This is shown by our current domi- 
nant position in international trade in these areas. 

We should know, however, that our dominance is primarily in 
current products of authorship. Our system has been phenomenally 
successful at continuing a supply of new and valuable work. The 
movies like "The Lion King" and the most recent Sylvester Stallone 
film, for example, generate vastly more revenues, probably any sin- 
gle one of those movies generates more revenues, than all of the 
works that are the true focus of this bill, which were produced in 
the 1920's and 1930's. Nobody has the precise numbers, appar- 
ently, but from the numbers we heard this morning, that seems not 
an unfair estimate. 

And the creation of these new products is possible because of the 
rich and vibrant public domain that has been passed down to us 
and our current creative authors from earlier authors. This valu- 
able source of cultural building blocks is itself a product of our sys- 
tem's careful balance of public and private interests. Our Constitu- 
tion provides for the protection of intellectual property for limited 
times to encourage the production of creative works. On the other 
hand, the longer exclusive rights last in a particular work, the 
more expensive it is for subsequent artists to create new works 
based upon it. And the most important goal in drawing the balance 
is that of promoting the creation and dissemination of information. 
This, in turn, depends on the existence of a rich public domain con- 
sisting of works on which contemporary authors can freely draw. 

I'm glad that Representative Conyers has returned. He expressed 
earlier this morning a special concern for the little guy, and I think 
that's one of the more important people we're talking about. The 
person who's out there today trying to create new works needs and 
wants a vibrant box, if you will, of building blocks out of which new 
works can be created. I think that it is very important to focus our 
attention on this difference between old works and new works. 

In my opinion, the extension legislation would prematurely, and 
without compensating benefit, abandon our traditional balance in 
favor of a stronger emphasis on private interests, in particular. 



291 

vested private interests. Europeans have long followed a different 
copyright philosophy based on notions of so-called natural rights 
rather than economic efficiency and overall social progress. We 
should not abandon what has worked for us so well in the past 
simply to imitate an untried European model that will provide an 
economic bonanza to the owners of a relatively small number of 
very old cop3n-ights at a cost of taking crucial building blocks out 
of the hands of current authors. 

We must ask whether we really wish to remake our cultural in- 
dustries in the image of Europe. We should not make the mistake 
of viewing the extension proposals as an us-against-them conflict 
between Europe and America. This, in fact, is not a conflict be- 
tween Europe and the United States. The real conflict in both 
places is between the interest of the public in a richer public do- 
main and the desires of copyright owners, who incidentally may or 
may not be related to the authors in question, to control the eco- 
nomic exploitation of the works that remain in their hands. That 
Europe has resolved the conflict in one way does not mean that we 
should blindly follow suit. 

Our written testimony details the deficiencies of the arguments 
offered in support of this extension legislation. The proposed exten- 
sion would supply no additional incentives to the creation of new 
works and it, obviously, supplies no incentive to the creation of 
works already in existence. Moreover, the notion that copyright is 
supposed to be a welfare system to two generations of descendants 
has never been a part of American copyright philosophy, nor has 
anyone made any showing, in fact, that life plus 50 years is insuffi- 
cient to sustain a revenue stream through two generations. 

In addition, so-called harmonization with European law would, in 
any event, not be achieved by this legislation, even with respect to 
length of term, much less with respect to other fundamental dif- 
ferences like moral rights and fair use. Nor is the so-called unequal 
treatment of U.S. copjrright owners in Europe a ground for mimick- 
ing a bad European move that favors the owners of a few old, but 
economically valuable, copyrights over the interests of the general 
public. It is not unfair that a work enter the public 50 years after 
the death of the author. Rather, that's an integral part of the social 
bargain on which our highly successful system has always been 
based. In fact, the works in question here, which were produced in 
the 1920's and 1930's, have already received one 19-year extension 
from the original 56-year term promised to their authors. After 
suppl5dng a royalty stream for such a long time, now 75 years, 
these old works should be available as bases on which current au- 
thors can continue to create culturally and economically valuable 
products. 

We already have a balance of public and private interests that 
protects works of authorship for a very long time. As I said earlier, 
there's no tension here between Europe and America. The tension 
is between the heirs and assignees of copyrights in old works ver- 
sus the interests of today's general public in freer competition, 
lower prices, and a greater supply of new work. Europe has re- 
solved the tension in favor of the owners of old copyrights; we 
should rather favor the general public. 

Thank you. 



292 

[The prepared statement of Mr. Karjala follows:] 

Prepared Statement of Dennis S. Karjala, Professor of Law, Arizona State 
University, on Behalf of the U.S. Copyright and Intellectual Property 
Law Professors 

INTRODUCTION 

The proposed legislation (H.R. 989) would extend the term of copyright protection for 
all copyrights, including copyrights on existing works, by 20 years: For individual authors, the 
copyright term would extend for 70 years after the death of the author, while corporate authors 
would have a term of protection of 95 years. Unpublished or anonymous works would be 
protected for a period of 120 years after their creation. The legislation would also extend the 
copyright in works that may be as old as our Republic or even older but that were never 
published prior to 1978 (when these works were first brought into the federal copyright system). 
Initially, these copyrights would be extended by another 10 years (to the year 2013), and if the 
copyright owners publish the works prior to 2013, copyrights in these already ancient works 
would continue in force until the year 2047. 

We believe that enactment of this legislation would impose substantial costs on the United 
States general public without supplying any public benefit. It would provide a windfall to the 
heirs and assignees of authors long since deceased, at the expense of the general public, and 
impair the ability of living authors to build on the cultural legacy of the past. In following a 
European model of regulation and rigidity, it would hinder overall United States competitiveness 
in international markets, where the United States is currently at its most powerful. We therefore 
conclude that it would be a mistake to extend any of the copyright terms of protection. 

SUMMARY OF ARGUMENT 

Various reasons have been offered in support of the extension proposal: Some say that 
the extension is necessary as an incentive for the creation of works. Some argue that the current 
period for individual authors— 50 years after the death of the author-was intended to provide an 
income stream for two generations of descendants and that the longer human life span now 
requires a longer copyright term. Some maintain that we should adopt an extended term because 
the countries of the European Union have done so, in order to "harmonize" our law with theirs. 
Some claim that the longer copyright term is necessary to prevent royalty inequality between 
United States and European copyright owners. 

None of these arguments take into consideration the costs to the United States public of 
an extended copyright term. Moreover, the arguments are either demonstrably false or at best 
without foundation in empirical data. If incentives were the issue, there would be no need to 
extend the copyrights on existing works, even if one were to accept the dubious proposition that 
the extra 20 years provide an incentive for the creation of new works. If we were worried about 
two generations of individual descendants, we should prohibit the first generation from selling 
the copyright outright, and we would have no need to extend the term for corporate authors. 
If we believe in harmonization, it is in any event not achieved under the proposed legislation nor 
does supposed royalty inequality provide a basis for extending the term. The discussion below 
shows the failure of these arguments in detail. It also shows that the costs to the United States 
general public vastly exceed even the gains to those relatively few copyright owners who would 

Written Testimony of Intellecmal Property Professors 

Page 1 



293 



benefit from the extension and that the general public itself would receive no compensating 
benefits. 

Once the errors in the argtmients for increasing the term have been exposed, the real 
reason for the legislation becomes clear: The maintenance of royalty revenues from those 
relatively few works from the 1920's and 1930's that continue to have significant economic 
value today. The continued payment of these royalties is a wealth transfer from the United 
States public to current owners of these copyrights. These copyright owners are in most cases 
large companies and in any case may not be descendants of the original authors whose works 
created the revenue streams that started flowing many years ago. To our knowledge, no one has 
made a study of just how great this wealth transfer would be, although it is clearly large enough 
to generate fervent support for the proposed legislation by performing rights societies, film 
studios, and other copyright owners in economically valuable works whose copyrights are 
otherwise due to expire in the next few years. 

The works about to enter the public domain, absent this legislation, were created in 1920. 
At that time and for many years thereafter, society's "bargain" with the actual authors was a 
period of exclusive rights under copyright for a maximum of 56 years. Those authors produced 
and published their works with the understanding that the works would enter the public domain 
56 years later. Yet, notwithstanding that bargain, the period was extended by 19 years in 1976 
to 75 years, as were the terms of all copyrights acquired after 1920. Now, 19 years later, these 
same copyright owners have remmed seeking yet another extension to continue the wealth 
transfer for another 20 years, without supplying any evidence, or even any arguments, that the 
public will benefit. 

This wealth transfer from the United States general public to copyright owners is, 
moreover, only a part-probably a small part—of the total cost that we and coming generations 
will bear if the extension is adopted. It is important to remember that the extension would apply 
to foreign as well as United States works. Therefore, in order to maintain a flow of revenue 
to the owners of United States copyrights, the general public will continue to pay on foreign 
copyrights from the 1920's whose terms must also be extended. No one has shown that there 
will even be a net international inflow of royalties from the works at issue. 

Even worse, to maintain the royalty revenues on those few works from this period that 
have continued economic viability, the copyrights must be extended on all works. This includes 
letters, manuscripts, forgotten films and music, out-of-print books, and much more, all potential 
sources on which current authors and scholars can base new works. Copyrights can and usually 
do have very complicated multiple ownership so many years after an author's death. The 
transaction costs of negotiating for use can be prohibitively high, even for works that no longer 
have economic value. None of the arguments for extension take into consideration the loss to 
both revenue and culture represented by the abseiKe of new popular works that are not created 
because underlying works that would have served as a foundation remain under the control of 



Written Testimony of Intellectual Property Professors 

Page 2 



294 



a copyright owner. By definition, this loss can never be known, but that makes it no less real 
or substantial. 

The creation of new works is dependent on a rich and vibrant public domain. Without 
good reason to expect a substantial compensating public benefit, we should not risk tying the 
hands of current creative authors and making them less competitive in domestic and international 
markets just to supply a financial windfall to owners of copyrights in works created long ago. 
Just as Santa Claus and the Easter Bunny are part of the public domain that anyone can use 
every Christmas and Easter season, so eventually should Mickey Mouse and Bugs Bunny also 
join our freely available cultural heritage. That is a crucial part of the copyright "bargain" that 
the public made at the time these works were created. 

We recommend that the proposed legislation be rejected. The issue is certainly an 
important one, but the legislation is premature at best where there has been no empirical 
demonstration of a public benefit and no thorough exploration of alternative approaches. 

UNITED STATES COPYRIGHT POUCY 

Both Congress and the courts have uniformly treated United States copyright law as an 
instrument for promoting progress in science and the arts to provide the general public with 
more, and more desirable, creative works: 

The limited scope of the copyright holder's statutory monopoly, like the limited 
copyright duration required by the Constitution, reflects a balance of competing 
claims upon the public interest: Creative work is to be encouraged and rewarded, 
but private motivation must ultimately serve the cause of promoting broad public 
availability of literature, music, and the other arts. The immediate effect of our 
copyright law is to secure a fair return for an "author's" creative labor. But the 
ultimate aim is, by this incentive, to stimulate artistic creativity for the general 
public good.' 

United States copyright tradition is in this respect philosophically different from that of many 
other coimtries that treat intellectual property as natural rights of individual creators. Under our 
system. Congress need not recognize intellectual property rights at all, but if it does, the purpose 
must be to promote innovation in science and the useful arts. 

Our system of copyright protection is delicately balanced. We recognize exclusive rights 
in creators so that consumers have available an optimal number and quality of works but want 
those rights to be no stronger than necessary to achieve this goal.^ We do not recognize new 



I. Twentieth Century Music Corp. v. Aiken. 422 U.S. 151, 156 (1975)(footnotes omitted). 

2 1 P. Goldstein, Copyright § 1 . 1 . at 6-7. 

Written Testimony of Intellectual Property Professors 

Page 3 



295 



intellectual property rights, or strengthen old ones, simply because it appears that a worthy 
person may benefit; rather, we do so only for a public purpose and where it appears that there 
will be a public benefit. The current statutory foundation of copyright protection, the Copyright 
Act of 1976, is itself the product of lengthy debate and represents innumerable compromises that 
seek to achieve the proper balance between private returns to authors and public benefit, 
including a broad public domain that permits current authors to build on the cultural heritage 
from those who have come before them. 

We are aware of no effort by the proponents of this extension legislation to show that the 
public benefits from its enactment would outweigh the costs. Indeed, they have demonstrated 
no public benefit whatsoever and have barely attempted to do so. Yet, the public cost in the 
form of a diminished public domain is obvious.^ As we demonstrate below, this public cost is 
not offset by any increased incentive to create new works, nor does international trade in 
intellectual property rights fill the gap between public costs and public benefits. 

Europe, whose copyright law is based more on a natural rights tradition, has recently 
moved to a life + 70 regime for individual authors and a 70-year period of protection for 
corporate authors. That should not cause us to change our underlying intellectual property 
philosophy. Nor does it provide a reason for avoiding the careful cost/benefit analysis called 
for by that philosophy. The United States joined the Berne Convention for many good reasons, 
one of which was to become an influential leader in world intellectual property policy. Our 
underlying policy has served us well, as shown by our dominant position in the worldwide 
markets, particularly for music, movies, and computer software. Rather than following Europe 
we might better seek to persuade Europeans that our approach to intellectual property rules both 
rewards creativity and promotes economic efficiency. 

In the following sections we consider in some detail the arguments put forward in support 
of the extension. We fu-st show the very real and substantial costs to the public that would result 
from adoption of this legislation— costs that are ignored by the arguments of its proponents. We 



The proponents of the extension could at least have considered less drastic means of achieving their 
asserted goals. They might have proposed, for example, a 'no injunction' regime SO years after the 
author's death, which could provide a continuing royalty to the owners of copyrights in economically 
valuable works (at the expense of the public) but would at least permit current and future authors to use 
all old works. 50 years after their authors' deaths, in creating new ones. The proponents might also 
have considered a reversion of all rights in the extended term to the descendants of the individuals who 
created the work, whether in a work-for-hire situation or not. Or they might have suggested at least 
prospective limitation of the work-for-hire term to 70 years, in the interest of harmonizing our law with 
that of Eim)pe. The law professors who have signed this testimony are not in agreement about whether 
any such limitations might temper their objections to the bill. The absence of any sign that measures of 
this type have even been considered, however, shows that the proponents of the extension have not 
concerned themselves with the public cost of their proposal. Congress, as representative of all the 
people and not just the special interests whose voices are loudest, must seek to maintain an appropriate 
balance by very carefully weighing the costs against the purported benefits. 

Written Testimony of Intellectual Property Professors 

Page 4 



296 



then go on to show that the arguments in favor are either logically fallacious or unsupported by 
any plausible evidence. 

COSTS OF A LONGER PROTECTION PERIOD 

While the asserted public benefits of an extended copyright protection period range from 
speculative to nonexistent, two identifiable costs are real and substantial: The first is the 
economic transfer payment to copyright owners during the period of the extension from 
consumers or other producers who would otherwise have free use of works. The second is the 
cost to the public of works that are not produced because of the diminished public domain. 

Economic Costs and Transfers 

The direct economic costs of a 20-year-longer period of protection, although difficult to 
calculate precisely, includes higher cost to the consuming public for works that would otherwise 
be in the public domain. That these costs are substantial is shown by the very claims of the 
proponents of this legislation that they will miss out on the European windfall if we do not 
extend our term to that of Europe. This windfall does not arise out of whole cloth. Rather, it 
is ultimately paid by consumers, that is, by the general public. And if Europeans will be paying 
for the right to use United States works in Europe, the United States public will be paying for 
the right to use both United States and European works here at home, increasing the windfall 
to copyright owners at the expense of United States consumers. 

In the legislative history of the Copyright Act of 1976, it was argued that the general 
public received no substantial benefit from a shorter term of protection, because the cost for 
works in the public domain was frequently not significantly lower than that for works still under 
copyright.'' Even without the fervor of the special interest protagonists of this legislation, 
however, economic theory tells us that the price to the public for popular works must, through 
competition, decrease to the marginal cost of producing the work if there are no exclusive rights. 
If the work is under copyright, the marginal cost of production would have to include the royalty 
owing to the copyright owner, even if there is general licensing to competing producers of the 
work. Moreover, if there is no general licensing of a copyright-protected work, the price can 
be expected to be set at the level that maximizes the return of the copyright owner, which is 
invariably higher than the marginal cost of production. Consequently, any claim that the public 
pays the same for public domain works as for protected works is implausible, at least in 
general/ Educational and scientific uses would also seem to be large markets for public domain 



H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133 (1976). 

Of course, the market for many public domain works may often be small, with the result that 
competition is thin, or even nonexistent. This can allow, say, a book publisher to charge a price for a 
republished public domain work that is consistent with prices for similar types of books that are under 
copyright. Given the thin market, such a price may be necessary for this publisher even to cover 

Written Testimony of Intellectual Property Professors 

Page 5 



297 



works. At a time of rising educational costs we should inquire into the effect on our schools 
of a reduced public domain due to an extended protection period. Something more than 
anecdotal evidence should be presented before we accept the claim that the consuming public 
will not incur higher costs from the longer period. 

Cost of a Diminished Public Domain 

An even more important cost to the public is that paid in desirable works that are not 
created because of the continuing copyright in underlying works: 

More than a nodding acquaintance with the concept of public domain is 
essential to comprehension of intellectual property law and the role of the United 
States Congress in creating that law. The addition of a creation to the public 
domain is an integral part of the social bargain inherent in intellectual property 
law.* 

While primary control over the work, including the rights to refuse publication or republication 
and to create derivative works, properly remains in the author who has created it, giving such 
control to distant descendants of the author can deprive the public of creative new works based 
on the copyright-protected work. Artistic freedom to make creative derivative works based on 
public domain works is a significant public benefit, as shown by musical plays like Les 



production costs (including a noimal return). This does not mean that the public domain status is 
irrelevant, because if a royalty were required in addition, such a book might not be republished at all. 

It may also be that the works in question are not public domain works but rather derivative works 
based on public domain works. A new derivative work is, of course, itself copyright protected and can 
be expected to sell at the same price that the public pays for other protected works in that category. In 
this case, continued copyright protection for the underlying work may require sharing of the profits 
generated by the new work, with no economic benefit to the public in the form of a lower net price. 
As there is also no net economic cost to the public, however, the economic effect of lengthening the 
protection period requires identification of the parties sharing the monopoly. One of those parties is, 
by hypothesis, the new author, whose creativity has resulted in the new derivative work. The other 
will be the owner of the copyright in the underlying work, who may or may not be distant descendants 
of the original author. In this case, true concern for authors would seem to favor not lengthening the 
protection period. 

Finally, as discussed below, when the underlying work remains under copyright, the real cost to the 
public may come from those new derivative works that are not created because of the new author's 
inability to negotiate permission from whoever owns the copyright SO years after the original author's 
death. 

Robert W. Kastenmeier & Michael J. Remington, The Semiconduaor Chip Protection Aa of 1984: A 
Swamp or Firm Ground?, 70 Minn. L. Rev. 417, 459 (1985); see also Peter Jaszi, When Works 
Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 U.C.L.A. L. Rev. 
715, 804-05 (1981). 

Written Testimony of Intellectual Property Professors 

Page 6 



298 



Miserables, Jesus Christ Superstar, and West Side Story, as well as satires like Rosencrantz and 
Guildenstem are Dead and even literary' classics like James Joyce's Ulysses. Although these 
might not necessarily be considered infringing derivative works even if the underlying work 
were under copyright, or might be excused by the fair use doctrine if otherwise infringing, their 
authors must necessarily take a cautious approach if a license is unavailable. When copyright 
subsists long after an author's death and there is no provision for compulsory licensing, the 
creation of derivative works that closely track a substantial part of the underlying work can be 
absolutely prohibited by copyright owners who have no creative relationship with the work at 
all. Authors of histories and biographies can also be inhibited from presenting independent 
analyses of earlier authors and their works by descendants who, for whatever personal reason, 
use copyright to prevent the publication of portions of protected works. 

An important cost paid by the public when the copyright term is lengthened, therefore, 
is contraction of the public domain. The public domain is the source from which authors draw 
and have always drawn.' The more we tie up past works in ownership rights that do not convey 
a public benefit through greater incentive for the creation of new works, the more we restrict 
the ability of current creators to build on and expand the cultural contributions of their forebears. 
The public therefore has a strong interest in maintaining a rich public domain. Nobody knows 
how many creative works are not produced because of the inability of new authors to negotiate 
a license with current copyright holders, but there is at least anecdotal evidence that the number 
is not insubstantial.^ Unless evidence is provided that a life + 70 regime would provide a 
significant added incentive for the creation of desirable works, the effect of an extension may 
well be a net reduction in the creation of new works. 

This point may be highlighted by the rapid developments now occurring in digital 
technologies and multimedia modes of storing, presenting, manipulating, and transmitting works 
of authorship. Many multimedia works take small pieces of existing works and transform them 
into radically different combinations of images and sounds for both educational and entertainment 
purposes. The existing protection period, coupled with termination rights, may well be 
distorting or inhibiting the creation of valuable multimedia works because of the transaction costs 



See generally Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990); David Lange, 
Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981). For an argument that copyright 
is also intended to accommodate users' rights, see L. Ray Patterson & Stanley W. Lindberg, The 
Nature of Copyright (1991), which includes a Foreword by former Congressman Kastenmeier. 

Nearly 50 yean ago Professor Cbafce pointed to examples in which the veto power of copyright in an 
author's descendants deprived the public of valuable works. Chafee, Reflections on the Law of 
Copyright: II, 45 Colum. L. Rev. 719 (1945). There have been press reports of refusals by the estate 
of Lorenz Hart of permission to use Hart's lyrics to any biographer who mentions Hart's homosexuality 
and of censorship by the husband of Sylvia Plath of the work of serious biographers who wish to quote 
her poetry. Professor Jaszi has provided examples of derivative-work films whose continued 
distribution has been limited or even suspended because of conflicts with the owner of the copyright in 
the underlying work. Peter Jaszi, supra note 6, at 739-40. 

Written Testimony of Intellectual Property Professors 

Page? 



299 



involved in negotiating the number of licenses required. Ultimately, the rapid changes in the 
intellectual property environment for creating and disseminating works may necessitate a 
reassessment by the international community of the underlying intellectual property rules. In 
the meantime, extending the protection period can only exacerbate this problem. The United 
States should be leading the world toward a coherent intellectual property policy for the digital 
age and not simply following what takes place in Europe. 

REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT TERM 

Incentives for the Creation of Works 

It does not follow that a longer term automatically drives creative authors to work harder 
or longer to produce works that can be enjoyed by the public. Indeed, there is necessarily a type 
of diminishing return associated with an ever-longer protection period, because the benefit to the 
author must be discounted to present value. As Macaulay observed over 150 years ago: 

[T]he evil effects of the monopoly are proportioned to the length of its 
duration. But the good effects for the sake of which we bear with the evil effects 
are by no means proportioned to the length of its duration. . . . [I]t is by no 
means the fact that a posthiunous monopoly of sixty years gives to an author 
thrice as much pleasure and thrice as strong a motive as a posthumous monopoly 
of twenty years. On the contrary, the difference is so small as to be hardly 
perceptible. ... [A]n advantage that is to be enjoyed more than half a century 
after we are dead, by somebody, we know not by whom, perhaps by somebody 
unborn, by somebody utterly unconnected with us, is really no motive at all to 
action. . . .' 

Thus, while an additional year of protection has little or no incentive effect at the time of a 
work's creation, the costs are immediate and substantial if the extension is to apply to existing 
works, as provided in the proposed legislation. 

The copyright industries are by their nature very risky, and no one in these industries 
makes fmancial decisions based on even 50-year, let alone 70-year, projections. Moreover, 
under the United States Copyright Act, most transfers of copyright by an individual author may 
be terminated 35 years after the grant. '° The existence of these inalienable termination rights 
in individual United States authors makes it even more unlikely that anyone would pay more to 



8 Macaulay, Works (Trevelyan ed. 1879) 199, quoted in Chafee, Refleaions on the Law of Copyright: 
II, 45 Colum. L. Rev. 719 (1945), requoted in R. Gonnan & J. Ginsburg, Copyright for the Nineties 
307 (4th ed. 1993). 



17 U.S.C.A. § 203. 



Written Testimony of Intellectual Property Professors 

Page 8 



300 



exploit a work under the extended term than would be paid under the current life + 50 period." 
The extension, therefore, holds little promise of fmancial benefit to individual authors. 

The absence of any additional incentive for corporate authors from the extension of the 
copyright period to 95 years is also easily seen. Consider an assured $1,000 per year stream 
of income. At a discount rate of 10%, the present value of such a stream for 75 years is 
$10,992, while the present value of a 95-year stream is $10,999, a difference of less than 0. 1 % . 
Even at a 5% discount rate, the present values are only $20,485 and $20,806, respectively, a 
difference of about 1.5%. And these minuscule present value differences are for guaranteed 
streams of income. When risk is factored into the analysis, the present value of a 75-year 
stream and that of a 95-year stream must be considered essentially identical. The chance that 
a given copyright will still have nontrivial economic value 75 years after the work is created is 
very small—only a tiny fraction of all works retain economic value for such a long time. No 
company will take the "extra" 20 years into consideration in making a present decision to invest 
in the creation of a new work. In fact, an ongoing successful company like Disney is more 
likely to be spurred to the creation of new works like The Lion King or The Little Mermaid 
because it realizes that some of its "old reliable" moneymakers, like Mickey Mouse, are about 
to enter the public domain. 

It is therefore extremely unlikely that an additional 20 years of protection tacked onto the 
end of a copyright protection period that is already very long will act as an incentive to any 
current author to work harder or longer to create works he or she (or it) would not have 
produced in any event. What is certain, however, is that such an extension of the copyright 
term would seriously hinder the creative activities of future as well as current authors. 
Consequently, the only reasonable conclusion is that the increased term would impose a heavy 
cost on the public-in the form of higher royalties and an impoverished public domain— without 
any countervailing public benefit in the form of increased authorship incentives. 

Indeed, if incentives to production were the basis for the proposed extension, there would 
be no point in applying it to copyrights in existing works. These works, by definition, have 



No human author can possibly receive anything more in exchange for terminable rights in his or her 
work under a life + 70 regime than under the current life + 50 regime. The reason, quite simply, is 
that no purchaser of copyright rights will pay anything for the "extra" 20 years of the term, because 
those supposed extra years can be freely terminated, along with whatever remains of the current period, 
before they ever begin. An exception is the right to continued exploitation of derivative works, which 
cannot be terminated. Even in this case, however, the maximum "extra" value to the transferring 
author is the present value difference between a 50-year and a 70-year protection period. Even for 
guaranteed income streams, this difference is around 5.4% (at an assumed 5% discount rate). That is, 
a guaranteed income stream of $1,000 per year for 50 years has a present value of $19,256 while the 
same stream for 70 years has a present value of $20,343. The purchaser of the derivative work right, 
however, will not be willing to pay anything close to this difference in present value, because of the 
overwhelmingly high risk thai the derivative work created pursuant to the purchased right will have an 
economic life, like most works, far less than even the 50 years now afforded. 

Written Testimony of Intellectual Property Professors 

Page 9 



301 



already been produced. Yet, if the extension were purely prospective (i.e., applicable only to 
new works), we could be certain that support for it would wither rapidly. Thus, the real issue 
is the continued protection of old works--not those that will enter the public domain 50 (or 70) 
years from now but rather those due to enter the public domain today. These works were 
originally published in 1920 (works published before 1978 have a flat 75-year copyright rather 
than the current life + 50 for individual authors). At that time, the law afforded a maximum 
of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now 
the descendants and assignees of these authors want yet another 20 years. The very small 
portion of these works that have retained economic value have been producing royalties for a 
full 75 years. In order to continue the royalty stream for those few copyright owners, the 
extension means that all works published after 1920 will remain outside the public domain for 
an extra 20 years. As a result, current authors who wish to make use of any work from this 
period, such as historians or biographers, will need to engage in complex negotiations to be able 
to do so. Faced with the complexities of tracking down and obtaining permission from all those 
who by now may have a partial interest in the copyright, a hapless historian will be tempted to 
pick a subject that poses fewer obstacles and annoyances. 

Copyright in Works Never Published Prior to 1978 

Until the effective date of the Copyright Act of 1976, works that had never been 
published were protected under the various state copyright statutes. Only published works were 
governed by the federal statute. However, the 1976 Act preempted state protection for 
unpublished as well as published works and, as a quid pro quo for the loss of perpetual state 
copyright protection, recognized a copyright in these previously unpublished works until the year 
2003. As an incentive to publication of these works, the current law also extends their 
copyrights until the year 2027, provided they are published prior to 2003. The proposed 
legislation would extend these periods by 10 and 20 years, respectively, so that a previously 
unpublished work will be protected until 2013 and, if published prior thereto, it will remain 
under copyright until the year 2047. 

An example is the recently discovered fragment from a draft of Mark Twain's 
Huckleberry Finn. The copyright on the published novel was registered in 1884, renewed by 
Twain's daughter in 1912, and expired in 1940. Even if a life + 70 system had been in place 
at the time of the work's creation, the copyright would have expired in 1980, along with 
everything else Marie Twain wrote (because he died in 1910). Because this story of Huckleberry 
Finn and Jim in the cave has now been published, however, current law recognizes the copyright 
until 2027. Under the proposed extension, the copyright on this story, already over 110 years 
old, will continue until the year 2047. 

We are not aware of any arguments in support of these particular extensions of the 
copyright period of protection. In contrast to the Mark Twain fragment, most of these works 
have only scholarly value, because if they were readily available and had economic value, they 
would already have been published. Moreover, many of these works are truly aiKient-letters 

Written Testimony of Intellectual Property Professors 

Page 10 



302 



and diaries from the founding fathers, for example~and constitute a vital source of original 
material for historians, biographers, and other scholars. 

Obviously, the normal copyright incentive to creative authorship is not involved here. 
This is simply an incentive to current owners of copyrights in very old works to find the works 
and publish them so that they will be accessible to everyone. By the year 2003 we will already 
have afforded the very distant descendants of the authors of these works 25 years of protection, 
plus the possibility of 50 years of protection if they find and publish the works. Twenty-five 
years is enough time for these owners to accomplish the ministerial tasks. These unpublished 
works should be allowed to go into the public domain in 2003, so that others will then have an 
incentive to find and publish them. 

Finally, even as to such of these works that are published prior to 2003, we can think 
of no argument, whether founded in natural law or otherwise, to support extending their term 
of protection until 2047. Fifty years of copyright protection for such old works, in favor of 
people who have no creative relationship with the works at all, is more than enough. 

Support for Two Generations of Descendants 

It is also argued that the copyright protection period was initially designed to provide a 
source of income to two generations of descendants of creative authors. Given the longer life 
spans of today, the argimient goes, a longer term is necessary to achieve this goal. 

Far from requiring longer copyright terms to compensate for longer life expectancies, 
these actuarial changes could be an argument for keeping the current term of life + 50, or 
perhaps even reducing it, because the longer life expectancy of the author automatically brings 
about a longer period of copyright protection. A longer overall life expectancy, moreover, does 
not in itself imply that the second generation loses anything in comparison with earlier eras. The 
crucial age for the second generation is not the absolute number of years grandchildren may be 
expected to live but rather the number of years they survive after the author's (i.e., their 
grandparent's) death. The copyright period is measured from the death of the author, and if 
grandchildren are living longer, so too are authors themselves. Certainly no one has provided 
data to show that grandchildren of today have significantly longer life expectancies than today's 
grandparents, let alone 20 years longer. Consequently, we should expect the current cohort of 
authorial grandchildren to remain alive for roughly the same length of time after their 
grandparents' deaths as at other times in this century. 

Second, protection of two generations of descendants is not the inevitable result hi a 
longer protection period. The copyright in a work that has been exploited and become popular 
will often have been transferred by the author or her descendants. Any termination rights with 
respect to the work will have already been exercised before the descendants in question here ever 



Written Testimony of Intellectual Property Professors 

Page 11 



303 



come into the copyright picture.'^ It is very likely that the copyright will have been 
retransferred after any termination before the current life + 50 year period has expired. Unless 
these transfers provide for a continuing royalty, there will be no royalties for the author's 
descendants who are alive thereafter. Moreover, even if the transferee is under obligation to pay 
a continuing royalty, it cannot be assumed that the royalty stream will accrue to distant relatives 
of the original author, such as great-grandchildren. The royalty may well be transferred outside 
the family, by will or otherwise, by earlier descendants. If sustenance to two generations of 
authorial descendants is really the goal, we should be considering prohibitions on transfers 
and/or stronger termination rights rather than a longer term of protection. 

Third, even the "natural law" argument on behalf of such distant descendants of authors 
is very weak. These equitable claims to a continued income stream obviously diminish with 
increasing temporal distance of descendants from the creative author. More important, while 
one can understand the desire of authors to provide a substantial estate to their immediate 
offspring, one must question the economic efficiency of a system that, as a matter of policy, 
seeks to grant an easy flow of income to a group of people the majority of whom the actual 
author may never have known. The descendants themselves would probably be better off, and 
certainly the general public would be better off, if they were to engage in some productive 
activity. United States copyright policy is not and has never been designed as a welfare system. 
It is therefore not entirely flippant to say to these distant descendants of creative authors who 
died 50 years ago what many now say to current welfare recipients: "Get a job! " 

Fourth, while the Directive in the European Union mentions protection for two 
generations of descendants as one of twenty-seven "Whereas" grounds for the extension in 
Europe," it has never been recognized as a goal of United States copyright law. Indeed, today's 
longer life expectancies were offered as a basis for the recent substantial extension of the 
copyright term in 1976, from 56 years to life -I- 50 years, without any mention of a "two 
generation" goal. '" Surely life expectancies have not increased since 1976 to justify an additional 
20 years of protection on this ground. Going to our current life -I- 50 system was necessary in 
order for the United States to join the Berne Convention, and one could at least make a coherent 
argument that the benefits of joining Berne might outweigh the costs of the diminished public 
domain resulting from the longer copyright. The "two generation" argument, however, is 
devoid of any relationship to a public benefit. We therefore question whether such a claim 
comports with basic United States copyright principles and the social bargain that places works 
in the public domain after the copyright has expired. 



12. Termination rights accrue 35 years after a grant by an author and expire 40 years thereafter. Because 
the extra 20 years that would be added by the extension to the protection period begin SO years after 
the author's death, all termination rights with respect to any authorial transfer will either have been 
exercised or have expired. 

13. Council Directive 93/98/EEC (Oct. 29, 1993). 

14. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133-34 (1976). 

Written Testimony of Intellectual Property E*rofessors 

Page 12 



304 



Finally, even if "two generations of descendants" were a valid basis for extending the 
copyright term for works of individual authorship, it provides no justification whatsoever for 
extending the term for corporate authors from 75 to 95 years. 

We conclude that the "two generation of descendants" argument is invalid on its face, 
advocates economic inefficiency, fails to comport with basic United States copyright principles, 
and is applicable at best to the term for individual authors. It cannot serve as a basis for the 
diminished public domain that the extension would effect. 

"Harmonization " with European Law 

The European Union has now directed its members to adopt a life + 70 term of 
copyright duration. Possibly because of the European namral rights tradition, neither the 
proposal in Europe nor its adoption was based on a careful analysis of the public costs and 
benefits of extending the term. Nevertheless, some argue that we must do the same to "protect" 
United States copyright owners, against whom the "rule of the shorter term" may be used to 
provide a shorter period of protection in Europe for United States works (life + 50) than is 
given to European works (life + 70). They also argue that harmonization of the worldwide term 
of protection is a desirable goal in its own right and that failure to adopt the European term will 
have an adverse effect on the United States balance of international trade. We first consider the 
general harmonization goal and, in the next sections, take up the question of the supposed 
"prejudice" United States copyright owners and the balance of trade would suffer in Europe were 
we not to follow the European example. 

Harmonization of worldwide economic regulations can often be useful, especially if 
differences in legal rules create transaction costs that inhibit otherwise beneficial exchanges. In 
some cases harmonization can be beneficial even if the uniform rule is in some sense less than 
ideal. Thus, a uniform fu-st-to-file rule for patents might make sense even if we believe that a 
first-to-invent rule is better in the abstract, because otherwise United States inventors-the very 
people whom we are hoping to encourage through the offer of a patent monopoly—might fmd 
it too burdensome to seek international protection. In that case the uniform rule goes to the very 
existence of the patent and not simply an extension of the duration of protection. We need not, 
however, seek uniformity for its own sake, if it means compromising other important principles. 
If the United States determines that works should belong to the public domain after life + 50 
years, no transaction cost problem is posed to United States authors by the longer period in 
Europe. The ultimate owners of their copyrights will, of course, be able to exploit them for a 
shorter period, in both Europe and the United States, but that is the result of our policy choice 
to make the worics freely available and not because of the absence of harmonization. 

In addition, even if harmonization is desirable, the question remains, who should 
harmonize with whom? Although doubts were expressed about the constitutionality of a life -I- 



Wrinen Testimony of Intellectual Property Professors 

Page 13 



305 



50 year period of protection at the time the Copyright Act of 1976 was adopted, '^ that standard 
could then accurately be denominated international'* and was in any event necessary if we were 
ever to join Berne. Life + 70 years is not an international standard today, notwithstanding 
recent actions in the European Union, nor will it become one without United States support. 
It was not even the standard in Europe until the European Council of Ministers directed that its 
member states adopt a uniform term of protection equal to the longest of any of its members. 
If the cost/benefit analysis required by our copyright tradition does not justify changing the 
social policy balances we have drawn, we might better use our influence to encourage the rest 
of the world to remain with our standard, and Europe to return to it, rather than follow a 
decision in Europe that was made without consideration of the factors we have always deemed 
crucial to the analysis. 

Moreover, the proposed legislation is not really aimed at harmonizing United States and 
European law. It would, for example, extend the copyright period for corporate "authors" to 
95 years <or 120 years if the work is unpublished). The European Union, by contrast, now 
offers corporate authors, for countries recognizing corporate "authorship," 70 years of 
protection, which is less than the 75 years we currently offer such authors. Consider also the 
works of Sir Arthur Conan Doyle, who died in 1930 and whose works have since 1981 been in 
the public domain in England (and Europe). Because works Hrst published before 1978 have 
a 75-year period of protection rather than the current life + 50 term, those works of Conan 
Doyle published in the 1920's remain under United States copyright. Thus, production in this 
country of public domain collections of his entire works is prohibited, although Europeans may 
do so freely. Because his last work was apparently published in 1927,''' it is scheduled to go 
into the United States public domain at the end of the year 2002. The extension would continue 
this "disharmony" until the year 2022. 

There are many other features of copyright law that are not "harmonized" even within 
Europe, let alone between Europe and the United States, including moral rights and the 



15. E.g., 14 Omnibus Copyright Revision Legislative History, House Hearings 1975 (Part 1) 133-34, 141- 
42 (testimony of Irwin Goldbloom, Deputy Assistant Attorney General, Civil Division, Depanment of 
Justice). Some believe that special constitutional problems arise from an extension of the period of 
protection for works already under copyright, because it recaptures from the public domain works that 
should be freely available under the 'bargain' made at the time the work was created and offers no 
countervailing public benefit. They argue that the constitutional term "limited times' must be 
interpreted in terms of the constitutional goal to promote the progress of science and the useful arts. 

16. E.g., id. at 108 (testimony of Barbara Ringer, Register of Copyrights); id. at 120 (testimony of Joel 
W. Biller, Secietaiy for Commercial Affairs and Business Activities, Department of State). 

17. The Advemure of the Veiled Lodger was published on January 22, 1927, and The Adventure of 
Shoscombe Old Place was published on March 5, 1927. Robert Bun de Waal, The Worid Biography 
of Sherlock Holmes and Dr. Watson 13, 23 (1974). This same source lists other Conan Doyle stories 
as having been published in 1921, 1922, 1923, and three each in 1924 and 1926. 

Written Testimony of Intellectual Property Professors 

Page 14 



306 



important United States concept of fair use. "Harmonization" is therefore not in itself a valid 
ground for extending any of our current copyright protection terms. 

Unequal Treatment of United States Copyright Owners 

In addition to lengthening the copyright term for individuals to life + 70 years, the 
European Union has adopted the "rule of the shorter term," under which works are protected 
only for the shorter of the European term or the term in the country in which the work 
originates. Therefore, it is true that retaining our current term of protection would deny some 
United States copyright owners (mainly companies rather than individuals) the financial benefit 
of this European windfall. But the mere fact that the European Union has adopted a bad idea 
does not mean that the United States should follow suit. France might elect in the future, for 
example, to give the works of Voltaire or Victor Hugo perpemal copyright protection, but that 
would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European 
copyright tradition, as we have noted, differs in important ways from that of the United States, 
primarily by treating copyright as a kind of natural entitlement rather than a source of public 
benefit. The European approach may on balance tend to discourage, rather than promote, new 
artistic creativity. We should not, therefore, assume that a policy giving a few United States 
firms and individuals an added financial windfall from works created long ago necessarily is one 
that promotes our long-term competitiveness in the production of new works. 

This extension proposal is perhaps an occasion to consider the special character of United 
States copyright and the features that distinguish our law from its continental counterparts. The 
constimtional concept of a limited term of copyright protection is based on the notion that we 
want works to enter the public domain and become part of the common culmral heritage. It is 
worth noting that in this century United States cultural productivity and international market 
share has been much greater than that of Europe. The genius of the American system is that 
it balances public and private rights in such a way as to provide a rich collective source on 
which to base new and valuable productions. This makes us wealthier not only culturally but 
in a hard-nosed economic sense as well. 

We must ask whether we really wish to remake our cultural industries in the image of 
Europe. This is not, in fact, a conflict between Europe and the United States. The real conflict, 
in both Europe and the United States, is between the interest of the public in a richer public 
domain and the desires of copyright owners (who may or may not be relatives of authors) to 
control economic exploitation of the copyright-protected works that remain in their hands. That 
Europe has resolved the conflict one way does not mean that we should blindly follow suit. 

The arguments for maintaining a rich public domain in the United States are not 
diminished by the withdrawal of works from the public domain in Europe, or even by the partial 
withdrawal of only "European" works. If Europe protects "its" copyright owners for a life -I- 
70 year period, its public domain is reduced, and the European general public suffers a net loss. 
The United States public, however, as opposed to individual copyright owners, is not harmed 

Written Testimony of Intellectual Property Professors 

Page 15 



307 



by the absence of protection in Europe 50 years after the death of a United States author. 
Conversely, the public will pay a real cost, both as consumers and as potential creators of new 
works, to the extent the public domain is further reduced by the longer protection period. 

It should be borne in mind that we are no longer talking about authors, whether European 
or American, of the works that would remain protected for the extra 20 years. Those authors 
will have been dead for 50 years. We are talking about current authors, however, who create 
new and valuable works based on the public domain. If the underlying work is unprotected in 
Europe as well as in the United States, those new United States derivative work creators, as 
authors, will reap the kind of economic benefits in both jurisdictions for which copyright is 
indisputably designed. There is real culmral value in allowing works to become part of the 
conunon heritage, so that other creative authors have the chance to build on those conunon 
elements. 

In this context, therefore, the notion of international "harmonization" simply obfiiscates 
the real issue: There is no tension here between Europe and the United States. The tension, 
rather, is between the heirs and assignees of copyrights in old works versus the interests of 
today's general public in lower prices and a greater supply of new works. Europe has resolved 
the tension in favor of the owners of old copyrights. We should rather favor the general public. 

ITie Balance of Payments 

We have conceded that certain United States copyright owners will receive royalty 
payments from European users for a shorter period than will European copyright owners from 
European users, if the United States does not follow Europe in extending the copyright term. 
It does not follow, however, that this will have any net negative effect on the United States 
balance of trade, even in the short term and much less over the longer term. 

Increasing the term in the United States means not simply that European users will pay 
longer. It also means that United States users will pay longer, and not just to United States 
copyright owners but also to owners worldwide. Works that are about to enter the public 
domain were created in 1920, and wliile Europeans may take more of our current worlu than 
we take of theirs, that is not necessarily true of works from the 1920's and 1930's. Our use 
of European works of classical music and plays as well as art works' from this era may outweigh 
the use Europeans make of United States works from the same period. Short term balance-of- 
trade analysis therefore requires an investigation of whether our use of such works that would 
remain protected under the proposed extension would cost more than we would receive in return. 

Moreover, a shorter term of protection in the United States will encourage rather than 
discourage the production of new works for worldwide markets. We roust recall that the public 
domain is the source of many of our finest and most popular works. The United States market 
is itself so large that, with both European and United Sutes works in the public domain here SO 
years after the author's death, it alone serves as a strong creation incentive. If the new woric 

Written Testimony of Intellectual Property Professors 

Page 16 



308 



is based on a United States work that is also unprotected in Europe, that new work should be 
a part of the continuing United States export engine in the world market. Even if the new work 
is based on a European work that remains under protection in Europe, popularity of the work 
in the United States will necessarily result in a license (to use the underlying work) in Europe, 
again with a net export gain to the United States. 

The argument that United States copyright owners will unfairly "lose" royalty revenues 
from Europe is therefore both wrong and incomplete. It is wrong because it is not unfair that 
a work enter the public domain 50 years after the death of its author. It is incomplete because 
it does not consider that the royalties in question will be paid not just by Europeans but also by 
Americans, and not just to United States copyright owners but also to copyright owners 
worldwide. Additional revenues to a few owners of old copyrights is not a public benefit 
justifying adoption of the legislation, and this remains true even though some part of those 
revenues would be paid by Europeans. The extension represents, rather, a heavy public cost, 
both in additional royalties paid by the United States public and in the loss of creative new 
works that will not be produced because the exclusive rights of copyright remain in full force 
on works that cost/benefit analysis would clearly place in the public domain. 

CONCLUSION 

The proposed legislation extending all copyright terms by 20 years is a bad idea for all 
but a few copyright owners. None of the current copyright terms of protection should be 
extended. 

The undersigned are all university professors who regularly teach or conduct legal 
research in the fields of coffy right or intellectual property. 

Howard B. Abrams, 

University of Detroit Mercy School of Law 

Martin J. Adelman 

Wayne State University Law School 

Howard C. Anawalt 

Santa Clara University School of Law 

Stephen R. Bamett 

University of California at Berkeley School of Law 

Margreth Barrett 

University of California Hastings College of the Law 



Written Testimony of Intellecmal Property Professors 

Page 17 



309 



Mary Sarah Bilder 
Boston College Law School 

Dan L. Burk 

Seton Hall School of Law 

Amy B. Cohen 

Western New England College School of Law 

Kenneth D. Crews 

Indiana University School of Law - Indianapolis 

Robert C. Denicola 

University of Nebraska-Lincoln College of Law 

Jay Dratler, Jr. 

University of Hawaii William S. Richardson School of Law 

Rochelle C. Dreyfuss 

New York University School of Law 

Rebecca Eisenberg 

University of Michigan Law School 

John G. Fleming 

University of California at Berkeley School of Law 

Laura N. Gasaway 

University of North Carolina School of Law 

Dean M. Hashimoto 
Boston College Law School 

Paul J. Heald 

University of Georgia School of Law 

Peter A. Jaszi 

American University, Washington College of Law 

Mary Brandt Jensen 

University of Mississippi School of Law 



Written Testimony of Intellecnial Property Professors 

Page 18 



310 



Beryl R. Jones 
Brooklyn Law School 

Dennis S. Karjala 

Arizona State University College of Law 

John A. Kidwell 

University of Wisconsin Law School 

Edmund W. Kitch 

University of Virginia School of Law 

Robert A. Kreiss 

University of Dayton School of Law 

Roberta Rosenthal Kwall 

DePaul University College of Law 

William M. l^ndes 

University of Chicago Law School 

David L. Lange 

Duke University School of Law 

Marshall Leaffer 

University of Toledo College of Law 

Mark Lemley 

University of Texas School of Law 

Jessica Litman 

Wayne State University Law School 

Peter S. Menell 

University of California at Berkeley School of Law 

Robert L. Oakley 

Georgetown University Law Center 

Harvey Perhnan 

University of Nebraska College of Law 



Written Testimony of Intellectual Property Professors 

Page 19 



311 



L. Ray Patterson 

University of Georgia School of Law 

Leo J. Raskind 
Brooklyn Law School 

David A. Rice 
Rutgers-Newark School of Law 

Pamela Samuelson 

University of Pittsburgh School of Law 

David J. Seipp 

Boston University School of Law 

David E. Shipley 

University of Kentucky College of Law 

Robert E. Suggs 

University of Maryland School of Law 

Eugene Volokh 

University of California at Los Angeles School of Law 

Lloyd L. Weinreb 

Harvard University Law School 

Sarah K. Wiant 

Washington & Lee University School of Law 

Alfred C. Yen 

Boston College Law School 

Diane L. Zimmerman 

New York University School of Law 

The undersigned is in agreement with the conclusions of this Written Testimony for 
substantially the reasons given. 

Wendy J. Gordon 

Boston University School of Law 



Written Testimony of Intellectual Property Professors 

Page 20 



312 



Mr. MOORHEAD. Mr. Patry. 



STATEMENT OF WILLIAM F. PATRY, PROFESSOR, BENJAMIN N. 
CARDOZO COLLEGE OF LAW 

Mr. Patry. Mr. Chairman, having sat on the other side of the 
dais in the 102d and 103d Congresses, I know how important it is 
to be brief at this time of the day, and I shall be. 

Your goals in introducing 

Mr. CONYERS. Were you in the Congress? 

Mr. Patry. I worked for Mr. Hughes as counsel to this sub- 
committee. 

Mr. Conyers. Oh, I see. OK. 

Mr. Patry. H.R. 989 has two laudable goals: first, to create par- 
ity between European and U.S. authors, and, second, to assure the 
author and his or her heirs of the fair economic benefits derived 
from the author's work. Unfortunately, I believe, as currently draft- 
ed, H.R. 989 does not achieve either of your worthy objectives; 
quite the contrary. 

Professor Karjala referred to Mr. Conyers' comments about look- 
ing out for the little guy. I had thought Mr Conyers was referring 
to jazz musicians in the forties and fifties and sixties who had to 
sign rather unfair contracts. On pages 4 through 6 of my written 
statement I refer to that situation. That's just the tip of the iceberg 
because we all know what it was like then. As an appendix to my 
written statement there is a Billboard editorial about this issue. 

Unfortunately, this bill as currently drafted doesn't look out for 
those musicians at all. Mr. Hoke asked about who the winners and 
losers were. Ironically, you can't say that many authors are win- 
ners under the bill as introduced. In fact, many of them will only 
marginally benefit, some of them not at all, while the disparities 
between European authors and U.S. authors will increase, not de- 
crease. Why? Because, as currently drafted, the bill grants the 20 
years of copyright to the purchasers of the copyright when the au- 
thor assigned his rights. The bill doesn't grant these 20 years to 
the author or to his family. And, moreover, the bill enforces very 
old contracts. In other words. Congress is statutorily enforcing pri- 
vate contracts that were written decades ago in the forties and fif- 
ties and sixties, very unfair contracts that we all know exist. This 
bill enforces those contracts, and it gives the purchasers of those 
copyrights the benefit of those old contracts for the 20 years. That's 
why I say the bill doesn't achieve the objectives that you set out, 
and they're very wonderful objectives. 

No one has given you, nor do I think anybody can give you, a 
reason why purchasers of copyrights from the forties and fifties 
shouldn't be required to sit down at the table and bargain with au- 
thors and their families for what the value of the copyright is right 
now for those new 20 years. After all, the purchasers of the copy- 
right are going to sit down with users and they're going to charge 
them what the value is in todays market. The only person who 
doesn't get the benefit of today's market is the author, and that's 
unusual, to say the least. 

The contracts I'm talking about could have been entered into as 
long ago as 1920 because there's a 75-year copyright. Think back. 
That's the very year commercial radio began. That's before talking 



313 

movies, before television, cable, videocassettes, audiotape cassettes, 
compact disks, computers, and before international markets were 
very important. 

In Europe, since there's a lot of talk about Europe, European law 
doesn't generally permit a contract that was entered into that long 
ago to cover technologies that were not in existence at the time. 
That's fair. It makes sense. If you sit down, negotiate a contract, 
it shouldn't cover technologies that come about 70 years later when 
you can't negotiate what the fair market value is, but this bill 
doesn't do that. This bill enforces those old contracts, and I think 
that what it does, therefore, is to perpetuate a disparity between 
U.S. authors and European authors. 

There's lots of glowing testimonials such as the one about inter- 
national royalties Charlene Barshefsky gave earlier, and that's all 
wonderful, and I think it's great and I think that U.S. authors 
should get them; and that's important. But what's lost is the fact 
that U.S. authors aren't going to get those international royalties 
in many cases. 

For example, there's the Billboard article about jazz and blues 
musicians from the forties and fifties refers to this. Recently, a 
number of companies have agreed to reform their contracts for 
international royalties. The whole article is in my written state- 
ment, so you can read it. The most enlightened of these companies 
are going to give these musicians 10 percent of foreign royalties. 
Some of them don't give them anj^hing. Some of them give 1 per- 
cent. So if we're talking about how great it is to get international 
royalties, it's a little unusual when 90 to 99 percent of those royal- 
ties are being siphoned off and not given to authors. At least you 
have to wonder whether the objectives of the bill are being 
achieved. 

I don't think that these disparities are limited to foreign royal- 
ties. Indeed, there are many musicians who have .been forced to sell 
their rights for a small, lump sum payment. Quincy Jones referred 
to some of them: Willie Dixon, Muddy Waters. These people had to 
sign retroactive work made for hire agreements. Two hundred dol- 
lars was all they got. I have statements from record companies 
where people like Muddy Waters and Hawlin' Wolf were in debt 
$50,000 for recoupable expenses for things like personal betterment 
or all sorts of other nonrecording costs. These people never made 
it out of the hole. 

Some companies the article refers to are reforming those con- 
tracts. Certainly not all of them are, and it's a very fair question 
to ask, if we're going to be extending copyright for 20 years, do we 
really want to extend those kind of contracts? I say no. 

Since introduction, there have been a number of groups and indi- 
viduals who have written to you asking that the bill be changed so 
that the copyright vests automatically in the authors. These in- 
clude Branford Marsalis, whom many of you know; the father of 
Jimi Hendrix, the National Writers Union, and the Graphic Artists 
Guild. These authors make the point much better than I can, of 
course, and Quincy Jones made the same one. Their families de- 
pend upon their ability to receive royalties for their compositions. 
Many of these artists, such as Jimi Hendrix, signed their contracts 
in their twenties. Frankie Lymon who with his group the Teen- 



314 

agers wrote, "Why Do Fools Fall In Love," he was 12 years old 
when he signed that contract, and his record company producer got 
himself listed as a coauthor of the song, even though he wasn't, so 
that he could get 50 percent of the author's share of the publishing 
royalties. Mr. Hendrix in his letter wrote to you about how he had 
spent years of litigation to try and get the fair economic benefits 
of his son's royalties. 

The point I'm making is not intended to disparage the music in- 
dustry. It's a great industry. I'm not saying that any of these prac- 
tices are current practices. Hopefully, they're not; I assume that 
they're not, but the past is relevant. It's not beating up on the 
music industry. The part is relevant because this bill statutorily 
enforces contracts from the forties, fifties, and sixties, and I think 
it's a fair question to ask whether you really want to do that. 

Mr. Bono at the Pasadena hearing observed that 99 percent of 
the songwriters or their families would want their copyright back, 
if you asked them. Of course: what songwriter is going to say, "Oh, 
no, don't give me that 20 years back; give it to the music publisher. 
That contract I wrote in the forties or fifties, sure, it only gave me 
$200 or 1 percent of the royalties, but that's OK; I don't need the 
money." Mr. Jones referred to many jazz musicians who make a 
living off of three or four songs. Well, they're not going to make 
much of a living if they have to live off of contracts from the forties 
or fifties. Why shouldn't they get the copyright back and to be able 
to negotiate what the fair market value is right now? 

The Copyright Office in its written statement I think takes a 
very similar position. They said, "On balance, it seems that authors 
should be the beneficiaries of the longer term." That's what the 
Constitution says, by the way. It says Congress has the power to 
grant copyright to authors, not to purchasers of copyright: to au- 
thors. 

Mr. Chairman, I want to note two very important drafting prob- 
lems. Even if you decide against vesting the copyright in the au- 
thor — and that's my very strong recommendation — ^for works pub- 
lished between 1920 and 1933, and for which a termination of 
transfer notice hasn't been filed, the way the bill works these peo- 
ple can't get their copj^^ight back because their time for terminat- 
ing has past. In other words. Congress said in 1976 we're going to 
give you an extra 19 years and you can get it back if you ask. Well, 
guess what? These authors from 1920 to 1933, who Mr. Lehman 
pointed out were from a very important era, they can't get the new 
20 years back because the time limits have passed. And that inabil- 
ity is deliberate. 

At the Pasadena hearing there was a question from Mr. Becerra 
about this, and the answer was, "Oh, well, the author would have 
terminated if the work is commercially valuable." That's kind of a 
silly answer I think because, if the work is commercially valuable 
for the publisher, how come it isn't commercially valuable for the 
songwriter? Of course it is. 

Ms. Peters also referred to the lack of termination notices; there 
haven't been very many. Of course, there haven't been many. It's 
incredibly complicated. In my written statement, I set out about six 
or seven pages of the history of this provision of the law and the 
technical details of it. Unfortunately, in our country we haven't 



315 

been generous to authors. We have set up almost as many obsta- 
cles as we possibly can to make sure that authors cannot get the 
benefits of all their rights. We can do better than that, and we 
should do better. At the very least, we should let people who want 
to terminate terminate. 

My final point is on Mills Music. This was a 1985 decision from 
the Supreme Court that misinterpreted section 304 of the Copy- 
right Act and had the result of unfairly depriving authors of many 
of their benefits. Former Register of Copyrights Barbara Ringer, 
who Mr. Moorhead of course knows very well, authorized me to tell 
you that she supports reversing this decision. 

In testimony before the Senate on this issue a number of years 
ago, she put it very succinctly: "The decision takes money away 
from authors and their families and gives it to entrepreneurs who 
did not bargain for it, did not expect it, and did nothing to deserve 
it." I notice that Register of Copyrights Marybeth Peters also asked 
you to examine this. This issue involves a lot of money, and in- 
volves a provision that deprives authors right now of what they 
should be getting, and if it isn't corrected, that unfairness is going 
to be perpetuated for yet another 20 years. 

Mr. Chairman, I trust that you'll understand that my comments 
are offered in the spirit of constructive suggestions. You have won- 
derful intentions in the bill. I think it's an excellent idea to benefit 
authors. My only hope is that the bill can be changed so that it can 
achieve your very worthy objectives. 

Thank you very much. 

[The prepared statement of Mr. Patry follows:] 



316 



PREPARED STATEMENT OF WILLIAM PATRY, PROFESSOR, BENJAMIN N. CARDOZO 

College of Law 



TABLE OF CONTENTS 
Overview 



PAGE 

2 



A Brief Review of Term of Protection 8 

in the United States 
The 1790 Act 
The 1831 Act 
The 1909 Act 
The 1976 Act 



9 
9 

10 
11 



How Duration Works in the 1976 Act 20 

Terms of Protection 20 

Terminations of Transfers 21 

Section 304(c) 22 

Section 203 ^^ 

29 
H.R. 989 ^^ 

Proposals for Amendment to H.R. 989 32 

Mills Music v. Snyder 33 

34 

Reciprocity 



317 



Overview 



Mr. Chairman, your intention and that of your cosponsors is 
noble: to create parity between European authors and U.S. authors. 
I do not believe your intention was to create parity between 
European authors and those who merely purchased the copyright from 
U.S. authors, leaving U.S. authors empty handed. Unfortunately, as 
currently drafted, H.R. 989 does not create parity between U.S. 
authors and European authors. Instead, because of drafting that 
statutorily enforces decades old contracts, the bill awards the new 
20 years of copyright to purchasers of copyright rather than to the 
author or his family. These purchasers of copyright neither 
bargained for nor paid for the new 20 years. 

As I detail below, ^ the history of these old contracts can be 
traced back at least to 1919, when lawyers for music publishers 
began inserting boilerplate language in contracts with songwriters 
claiming that any future extensions of term granted by Congress 
would automatically vest in the publisher.^ H.R. 989 has the 
effect of statutorily enforcing this 1919 boilerplate language with 



See page 16. 

^ This practice was candidly noted during 1964 Copyright 
Office meetings on revising the 1909 Act by Philip B. Wattenberg: 

Since 1919 my firm has represented music publishers, 
and during those years we've drawn numerous contracts 
under which the renewal contract was assigned to the 
publisher. Invariably, these contracts contained the 
following language: "If the copyright law of the 
United states now in force shall be changed or amended 
so as to provide for an extended or longer term of 
copyright, then the writer hereby sells, assigns, 
transfers, and sets over unto the publisher, its 
successors and assigns or designees, all his right, 
title, and interest in an to said musical compositions 
covered by this agreement, for such extended or longer 
term of copyright." 

Copyright Law Revision Part 4 : Further Discussions and Comments on 
Preliminary Draft for Revised U.S. Copyright Law . 88th Cong. , 2d 
Sess. 39 (House Coram. Print 1964) . 

That music publishers were able to force writers to sign such 
agreements does not mean that music publishers paid for the right 
and thus should have the benefit of a term of copyright not even in 
existence until decades later. 



318 



the result that, as in the board game "Monopoly," the copyright 
goes right to the publisher without even stopping at the author. 

Your laudable goal of parity for U.S. authors has thus been 
distorted into an involuntary subsidy for purchasers of copyright. 
This subsidy is the difference between the market value of the 
copyright in today's market and the market value of the copyright 
when the original contract was signed. The subsidy will be paid by 
authors and their families, the very people the bill is intended to 
help. No one has or can give you a reason why purchasers of 
copyright shouldn't be required to sit at the table and bargain 
with authors or their families for the value of the new 20 years 
copyright in today's market; after all, the copyright is for 
exploitation in today's market. 

Mr. Chairman, the contracts I'm talking about could have been 
written as long ago as 1920, the very year commercial radio began, 
at a time before most talking movies, before television, before 
cable, before videocassettes, before audio tape cassettes, before 
compact discs, before computers, and before foreign markets were 
important. While the terms of these old contracts vary even within 
industries, some courts have upheld broadly drafted contracts from 
the 1920s and 1930s that give the purchaser of the copyright the 
right to release the author's work in new technological media not 
in existence at the time of the contract, sometimes with no 
payment, and always at a rate that does not reflect the current 
market conditions. 

Most countries throughout the world, including those in 
Europe, do not permit assignments of rights in technologies not in 
existence at the time the contract was signed. By enforcing these 
old contracts, your goal of achieving parity between U.S. authors 
and European authors will not be achieved. Instead, a disparity is 
being perpetuated. 

Moreover, in the past U.S. musicians have received very few 
foreign royalties, as revealed in the attached June 10th article in 
Billboard magazine. If that's the case now, it will be the case for 
the new 20 years. But this problem is hardly limited to foreign 
royalties. There are many well-known musicians who were forced to 
sell their rights for a one-time small, lump-sum. These musicians 
won't receive one penny if H.R. 989 passes. 

Since the introduction of H.R. 989, a number of groups and 
individuals have had the chance to fully study the bill. They are 
writing to you asking that the bill be changed to vest the 
copyright automatically in authors. These authors make the point 
better than I can: their families depend upon their ability to 
receive royalties from their compositions. As Mr. Bono stated at 
the Pasadena hearing, many musicians sign contracts when they are 
very young, often without legal (or any) representation, without 
any knowledge of the copyright law, and with little experience in 



319 



the music business. 

At the Pasadena hearing Mr. Bono made the same point, 
observing that songwriters don't have the rights they should 
because many of them signed contracts when they were very green 
about the music business, whereas music publishers have, as he put 
it, "a battalion of lawyers." Although Mr. Bono's comments need no 
support, articles in Billboard magazine (reproduced in the appendix 
to this statement) , as well as number of biographies or 
autobiographies of musicians, statement reinforce his comment. For 
example, Willie Dixon, the most famous and prolific of blues 
composers, put it this way in his autobiography: 

I call it swindling but most people call it smart 
business when you take advantage of someone who don't 
know no better. I didn't know anything about copyright 
laws or anything like that. 

I thought I was dealing with honest people and when 
you trust someone who's dishonest, you get bitten. The 
law can take care of it if you can get enough money and 
get a lawyer to get justice. They [Chess Records] felt 
like if they could keep you poor enough, you wouldn't 
have nothing to fight with and that's the truth. I didn't 
have $2 a lot of times to have a copyright paper on a 
song sent into Congress.-^ 

Don Snowden, who collaborated with Willie Dixon on the 
autobiography explained how the copyright in the musical 
composition dovetailed with record contracts: 

[T]he chief bone of contention among Chess artists 
concerned the symbiotic relationship with Arc Music, 
the label's in-house publishing company formed in 1953. 
The Chess brothers were partners in Arc Music with 
Gene and Harry Goodman, who ran the publishing company 
from New York. Ironically, given the number of claims 
that have been filed against Arc Music by black blues 
artists, the Goodmans were the brothers of Benny Goodman, 
who had effectively broken the color barrier in jazz in 
1936 by including pianist Teddy Wilson and later vibes 
player Lionel Hampton in his group. 

It was common practice for the early independent record 
companies to start up their own publishing wings — and 
sometimes placing the rights to their songs with the in 



^ Willie Dixon, "I Am the Blues" 99-100 (1989) . Like Muddy 
Waters, Dixon signed a retroactive work for hire agreement, which 
he subsequently got overturned with legal help. In his 
autobiography '"he also talks about Chess's practice of putting its 
publisher's or other people's names on composer's songs. See id . at 
20Q. 



320 



-house publishing company was a condition of an artist 
getting recorded. Label owners could, with a stroke of 
the pen, split songwriting credits [and therefore 
royalties] by adding names or pseudonyms to the copyright. 
The most famous example at Chess was "Maybelline, " credited 
to Chuck Berry, rock n'roll deejay Alan Freed and Russ 
Fratto, the man who was printing up the record labels for 
Chess at the time.^ 

Chess /Arc Music was hardly alone in this practice; Atlantic 
Records was also notorious, and even famous composers such as Duke 
Ellington were forced to share authorship credits and royalties 
with their music publishers. In his book "Hit Men," Frederic Dannen 
stated regarding the independent labels: 

The pioneers deserve praise for their foresight 
but little for their integrity. Many of them were 
crooks. Their victims were usually poor blacks, the 
inventors of rock and roll, though whites did not 
fare much better. It was a common trick to pay off a 
black artist with a Cadillac worth a fraction of what 
he was owed. Special mention is due Herman Lubinsky, 
owner of Savoy Records in Newark, who recorded a star 
lineup of jazz, gospel, and rhythm and blues artists 
and paid scarcely a dime in royalties. 

Dannen also quotes Hy Weiss, founder of the Old Town record 
label, as stating "What were these bums off the street?" and as 
defending the practice of giving Cadillacs instead of royalties 
with reasoning that evokes the memory of Earl Butz, President 
Nixon's one-time Secretary of Agriculture: "So what, that's what 
they wanted. You had to have credit to buy the Cadillac."^ 
Apparently even those songwriters without an appetite for Cadillacs 
had no choice but to give up their copyright: 

[Levy] saw nothing wrong, for example, in putting his 
name on other people's songs so that he could get 
writer's as well as publisher's royalties. When Ritchie 
Cordell wrote "It's Only Love" for Tommy James and the 
Shondells, ... Morris [Levy], [Cordell] said, "gave me 
back the demo bent in half and told me if his name wasn't 
on it, the song didn't come out."^ 



* Id. at 185. Freed was indicted in 1960 in a payola scandal 
and admitted taking $2,500. See Frederic Dannen, "Hit Men" 43 
(1991) . 

^ Id. at 49. 

^ Id. at 48-49. 



321 



Bunk Johnson, a pianist and bandleader, is quoted in Dizzy 
Gillespie's autobiography "To Be or Not to Bop" (page 298) as 
follows: 

A lotta guys who weren't keeping up with what was 
going on [with copyright law] would get a [recording] 
date, so the [record company's] A&R man, or some 
fellow, ofay or whatever, would say "O.K., gimme a 
riff. You know, just make up a head. We don't need 
no music; we're gonna record." 

So the cats would record, make up something. And 
they're actually creating the music right on the 
record date. Now, when it comes out, they wouldn't 
completely beat them, but usually the guy, the A&R 
man, had his own publishing firm or his buddy's got 
one and right away he would stick in all of this 
material — because you have recorded it and you didn't 
have it protected — and in order for him, he says, to 
sava the material, he's put it in a publishing company. 
The publishing company would give you one of them jive 
contracts, where you'd never get no royalties. So this 
was a rip-off. 

The music industry's historically poor treatment of jazz, 
blues, and popular musicians led to a recent editorial in the June 
10, 1995 issue of Billboard magazine, part of which states:' 

One of the music industry's best-kept secrets 
for decades centered on an ugly period of 
economic injustice often perpetrated by owners 
of masters and song copyrights against artists 
and songwriters who mainly made their way (if 
not much of a living) in the R&B and blues fields. 

An article accompanying the editorial notes that 

Old recording contracts often saddled unrepresented 
artists, most of them African-Americans, with 
royalty rates as low as 3% of wholesale or 1% 
of retail price. Still other artists accepted 
no-royalty "buy-outs" of between $50 and $200 
per record. 

Mr. Chairman, I do not raise these points to disparage the 
music industry or to suggest that these represent today's 
practices. But this unfortunate past is relevant to H.R. 989, 
because as currently drafted, the bill will enforce these very 
contracts for another 20 years. 

Nor Mr. Chairman, am I saying that all publishers are evil or 



'' The entire editorial is attached to this statement. 



322 



that all contracts are unfair. That's not the case, and some record 
companies /publishers are revising old contracts to give artists a 
better deal.^ Authors need publishers, and publishers need 
authors. I have an excellent, long term relationship with my 
publisher, and I am an avid purchaser of both books and sheet 
music. I appreciate the efforts publishers undertake to get a work 
to market and make it successful, and I agree they should get the 
full benefit of their bargain. But I don't agree that contracts 
entered into decades ago should govern a situation neither side 
bargained for ~ a grant in 1995 of a new term of 20 years 
copyright. It is only reasonable and fair to grant the new 
copyright to authors, thereby permitting the author (or his heirs) 
to sit down in 1995 and say to the purchaser of copyright: "We now 
have a new right, how do we fairly negotiate a deal in 1995?" 

No one can refute Mr. Bono's observation at the Pasadena 
hearing that 99% of songwriters or their faunilies would want the 
copyright back if given the chance. It is my understanding that 
music publishers may not support a bill that does not give them the 
copyright. Indeed, music publishers may also seek to delay the 
termination of transfer provision in Section 203 of the 1976 Act 
for copyrights assigned on or after 1978. This section says that 
the author can get his or her copyright back 35 years after it was 
assigned. Music publishers are supposedly seeking to make the 
songwriter wait even longer. But there is no connection between 
extending the term of copyright and Section 203. 

This proposal will place songwriters in a worse position than 
they are under today's law. For this reason, the Nashville 
Songwriters Association has said that they would rather have no 
bill than a bill that includes the music publishers' proposal. 

But the unintended negative effects of the bill as drafted 
aren't limited to assignments made from 1978 on. For works that 
were first published between 1920 and 1933 and for which a 
termination of transfer notice under Section 304 of the Act has not 
been filed, the author cannot get his copyright back for the new 20 
year term, even if he wants to . because the 5 year window for 
termination is past. As ASCAP's lawyer testified at the Pasadena 
hearing, in response to a question from Mr. Becerra, barring these 
authors from getting their copyright back was deliberate. The 
reason given was that if the work was valuable, the author would 
have already terminated. This response blames the victim. If a work 
is commercially valuable for the publisher, it is valuable for the 
composer. And, of course, how could a composer have known in 1978 
that he was supposed to file a notice with the Copyright Office 
because 17 years later Congress was going to grant an additional 20 
years copyright? 



^ See attached March 4, 1995 Billboard article. 



323 



Fortunately, the problems with H.R. 989 can be easily fixet 
and your good intentions full realized. As discussed more below, 
all you need do is either vest the proposed extra 20 years 
automatically in the author, either following the approach already 
taken in the bill, or, alternatively — and this is my preference - 
- by going to a life plus 70 term for all works, regardless of when 
published. 

A Brief Review of Term of Protection in the United States 

In order fully to understand the provisions of H.R. 989, a 
brief review of the history of the term of protection in the United 
States may be helpful since H.R. 989 reaches back as far as works 
first published in 1920. 

Article I, section 8, clause 8 of the Constitution empowers 
Congress to grant authors the exclusive right to their writings 
••for Limited Times," but without any guidance as to what the phrase 
means, other than, obviously, not permitting perpetual copyrights. 
Congress has not been particularly generous in granting copyright 
protection, so the limits of the Constitutional power have never 
been tested. 

The first U.S. Copyright Act, the Act of 1790,' began the 
pattern, only broken 186 years later in the 1976 Act,^° of 
measuring copyright from an event other than the author's life.^^ 
From 1790 to 1908, that event was filing a prepublication title 
page of the work either with the clerk of the district court where 
the author resided (from 1790 to 1869) or with the Library of 
Congress (from 1870 to 1908). From 1909 to 1977, copyright was 
measured from the date of first publication of the work.^^ 



^ Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124. 

^° The 1976 Act was effective January 1, 1978. 

^^ By contrast, the first French Act, that of 1793, was based 
on the life of the author. In 1814, the British went to a term of 
28 years plus the remainder of the author's life if he or she was 
alive at the end of the 28 year period. 53 Geo. Ill, ch. 156. In 
1842, the British switched to a term of 42 years or life of the 
author plus 7 years, whichever was longer. 5 & 6 Vict., ch. 45. In 
1911, England, as a result of its adherence to the Berne 
Convention, went to life plus 50. (The 1908 Berlin Berne Convention 
had stated a desire for a life plus 50 term, but that term did not 
become a requirement until the 1948 Brussels Convention) . 

^^ An exception was provided for so-called "Section 12" works: 
unpublished works that were typically performed and not sold in 
copies, such as motion pictures and speeches. Although the statute' 



324 



Beginning in 1978, the basic term was switched to life of the 
author plus 50 years. ^^ 

The 1790 Act 

The term set forth in the 1790 Act (like much of that Act) was 
derived from the 1710 English Statute of Anne:^* an original term 
of 14 years from the date the title of a prepublication copy of the 
work was filed with the clerk of the United States district 
court, ^^ followed by a second renewal term also of 14 years for 
the benefit of the author or the author's executor, administrators, 
and assigns if the author was alive at the expiration of the first 
term and the work was again filed with the district court. If the 
author died during the first term, the work fell into the public 
domain at the expiration of that term. And if the author lived 
until the renewal term, but failed to timely renew, the work also 
fell into the public domain. If the author died during the renewal 
term (and a timely renewal had been made) rights were owned 
according to the author's bequest, or if assigned, according to the 
assignment. 

The 1831 Act 

In 1831, at the request of Noah Webster, Congress doubled the 
original term of copyright to 28 years. ^^ The renewal term stayed 



did not provide a term for these works, the courts held that the 
term was measured from the date of registration with the Copyright 
Office. 

^^ 17 U.S.C. section 302 (1978). For works created by 
corporations the term could not be measured by the life of the 
author, and is instead set at either 75 years from the date of 
first publication or 100 years from creation, whichever occurs 
first. 

^* 8 Anne c. 19 (1710). 

^^ Interestingly, the Statute of Anne and all of the colonial 
statutes, as well as the Continental Congress's May 2, 1783 
resolution urging the states to adopt interim copyright laws 
measured term from the date of first publication of the work. No 
evidence has turned up explaining the 1790 Act's departure from 
this prior practice. 

^^ Act of February 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436; 
W. Ellsworth, COPY-RIGHT MANUAL 21-22 (1882). Ellsworth was 
Webster's son in-law, and a member of the House of Representatives 
at the time of this Act (including the Judiciary Committee, upon 
whose behalf he reported out the bill) , 52 ANNALS OF CONGRESS, 
Appendix cxix, 21st Cong. (Dec. 17, 1830) (Gale & Seaton's Register 



325 



10 



at 14 years. This Act also changed the prior law so that the work 
did not go into the public domain if the author died during the 
original term, and limited the renewal right to the author's 
surviving spouse and children, eliminating executors, 
administrators, and assignees. The intent of these changes appears 
to have been to prohibit the author from making a binding inter 
vivos transfer of both the original and renewal term, and to 
prohibit the author from conveying the renewal term to anyone other 
than his family. 

The 1909 Act 

In the 1909 general revision. Congress doubled the renewal 
term, so that both the renewal term and the original term were 28 
years, for a possible total of 56 years. ("Possible" because if a 
timely, proper renewal was not filed in the final year of the 
original term, the work went into the public domain after only 28 
years) . At the same time, the term was switched from the date of 
filing a prepublication title with the Library of Congress to the 
date of first publication. Congress had come very close to adopting 
a term of life of the author plus a fixed number of years, but at 
the last minute switched to the 28+28 structure, perhaps swayed by 
Mark Twain's testimony that he had only made money off of Innocents 
Abroad because he had retained the copyright in the renewal 
termT^ The House Patent Committee^® report accompanying the 
1909 Act explains that it believed it was 

"distinctly to the advantage of the author to 
preserve the renewal period. It not infrequently 
happens that the author sells his copyright outright 
to a publisher for a comparatively small sum. If the 
work proves to be a great success and lives beyond 
the term of twenty-eight years, your committee felt 
that it should be the exclusive right of the author 
to take the renewal term... . ^^ 

This passage also indicates Congress's intent that the author 
should not be able to assign the renewal term until that term 



of Debates in Congress) 



^^ If true, this is ironic since Twain had testified in favor 
of the life plus a fixed term bill, adding that he wished copyright 
could be perpetual. See Arguments Before the Committees on Patents 
on S. 6330 and H.R. 19853 . 59th Cong., 1st Sess. 116-121 (1906). 

^® At this time the Patent Committee, rather than Judiciary, 
had primary jurisdiction over intellectual property. 

^^ H.R. REP. NO. 2222, 60th Cong., 2d Sess. 14 91909). 



326 



11 

vested. This has been the consistent view of the Copyright 
Office. 2° Nevertheless, in Fred Fisher Music Publishing Co. v. M. 
Witmark & Sons .^^ the Supreme Court, openly rewriting the 
Copyright Act,'^'^ held that an assignment of the renewal term, made 
by the author dxiring the original term was binding. In Miller Music 
Corp. V. Charles N. Daniels. Inc. .^^ the Court tempered the Fred 
Fisher holding slightly, by holding that where the author died 
before the renewal term the assignment of the renewal term, as a 
contingent interest, failed and the author's statutory successors 
took the renewal term free and clear of all assignments made during 
the original term. 

The 1976 Act 

Efforts at revising the 1909 Act began in 1955 with a 
comprehensive way with a series of 36 issue studies by the 
Copyright Office. In 1961, Register of Copyrights Abraham 
Kaminstein issued a report to Congress containing the Office's 
preliminary conclusions and recommendations about what a revised 
law should contain.^* The Register recommended that for works 
created after the new law went into effect, the copyright should 
last for an initial term of 28 years from the first public 
dissemination of the work,^^ and that at any time during the last 
5 years of this initial term, any person claiming an interest in 
the copyright could file a renewal application, which would then 



^° See COPYRIGHT LAW REVISION: REPORT OF THE REGISTER OF 
COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 87th 
Cong., 1st Sess. 53 (House Comm. Print 1961). 



21 



318 U.S. 643 (1943) 



^^ See 318 U.S. at 647, "if we look only to what the Act says, 
there can be no doubt as to the answer," the answer being the 
opposite of what the Court held. 

23 362 U.S. 373 (1960). In Stewart v. Abend . 495 U.S. 207 
(1990) , the Court applied Miller Music to cases involving 
derivative works prepared during the original term, overruling 
Rohauer v. Killiam Shows, Inc., 551 F.2d 484 (2d Cir.), cert. 
denied . 431 U.S. 949 (1977). 

2* This report was published by the House Judiciary Committee, 
Copyright Law Revision; Report of the Register of Copyrights on the 
General Revision of the U.S. Copyright Law . 87th Cong., 1st Sess. 
(House Comm. Print 1961) . 

2^ This differed from the 1909 Act, which measured term from 
the date of first publication. 



327 



12 



extend the copyright for 48 years, for a total of 76 years. ^^ 
Despite this somewhat more liberal approach,^' as under the 1909 
Act, failure to renew would throw the work into the public domain. 

For works that had already been published at the tine the new 
law went into effect, the copyrights would be extended for the same 
period of time.^° The Register also expressed the view that due 
to the above-mentioned Supreme Court decisions, Congress's intent 
in giving the renewal term to authors or their heirs had been 
thwarted.^' To cure this problem, the Register proposed that there 
be a 20-year limit on any assignment of copyright, or at least 
those assignments that did not provide for continuing royalties, so 
that authors or their heirs would be "in a position to bargain for 
remuneration on the basis of the [then present] economic value of 
their works. "^° This same concern animates my earlier remarks that 
the current version of H.R. 989 unintentionally deprives authors 
and their feunilies from bargaining for the current value of the 
work. 

In meetings with industry groups and others interested in the 
revision, the Copyright Office heard considerable criticism of its 
proposals, ^^ with the Register later describing the termination 



^^ Id. at 56. The 76 year period came about as a result of a 
study of 673 authors of English-language books who died between 
1930 and 1955, a survey of 61 composers of "serious" music, and a 
survey of 191 authors of popular music who died between 1930 and 
1950. This data showed that the average age at median between the 
first and last work was 48 years and the average age at death was 
68 years, for a span of 2 years. Based on these figures, the 
Register assumed that a term of 7 years from first publication 
would approximate the life plus 50 term. But because life 
expectancies were rising, a slightly longer term of 76 years was 
proposed . 

^' Under the 1909 Act, there was only one proper renewal 
claimant and the renewal application had to be filed within the 
final year of the first 28 year period of protection. 

^° I do not discuss the separate issue of the treatment of 
unpublished works. I understand that the Copyright Office is 
addressing this issue in its statement. 



30 



Register's 1961 Report at 53-54, 
Id. at 93. 



See Copyright Law Revision Part 2: Discussions and Comments 
on the Report of the Register of Copyrights on the General Revision 
of the U.S. Copyright Law . 88th Cong., 1st Sess. (House Comm. Print 
1963) . 



328 



13 



of transfer provisions as "the most explosive and difficult issue" 
in the revision drafting. ^^ Some criticized the Office's failure 
to propose a term of life of the author plus 50 years, ■'^ while 
publishers and motion picture companies criticized the author's 
proposed ability to terminate an assignment after 20 years. ^* 
Authors' groups and some scholars, such as Melville Nimmer, 
supported the termination right, •'^ with some arguing it should 
apply to all assignments (i.e., regardless of whether there was a 
continuing obligation to pay royalties) . 

In 1963, the Copyright Office circulated a preliminary draft 
bill.^^ As a result of the Office's abandonment of its earlier 
proposal that copyright vest upon first public dissemination in 
favor of copyright vesting automatically upon creation and 
fixation, alternative approaches to term were offered in Sections 
20 and 22. Section 20 covered works created after the effective 
date of the new law. Section 22 covered works created before the 
effective date of the new law. Alternative A in Section 20 provided 
for a term of 75 years from publication or 100 years from creation, 
whichever occurred first. Alternative B provided for a term of life 
of the author plus 50 years. Section 22(b) extended the renewal 
term for 47 years for a total of 75 years, a period that was viewed 
as roughly equivalent on an actuarial basis to life plus 50. 
This extra 19 years (28+19=47) was subject to an important right, 
in Section 22(c) , of the author to terminate the transfer beginning 
in the first year of the extra 19 years (year 57 of the 



^^ Copyright Law Revision Part 6: Supplementary Report of the 
Register of Copyrights on the General Revision of the U.S. 
Copyright Law; 1965 Revision Bill . 89th Cong., 1st Sess. 71 (House 
Comm. Print 1965) . 

^^ Id. at 77-107, 229, 235-237, 247, 252-254, 376-377. But see 
id. at 263-267, 279, 299-300, 353-356, 370, 375-376, 382-383, 413. 

^* Id. at 104, 108, 230, 353, 357-358, 360-362. 

^^ Id. at 238-239, 248, 258-259, 317, 370, 374, 379, 385, 392- 
393, 415 

^^ Copyright Law Revision Part 3; Preliminary Draft for 
Revised U.S. Copyright Law and Discussions and Comments on the 
Draft (Sept. 1964). 

^^ See Copyright Law Revision Part 4; Further Discussions and 
Comments on Preliminary Draft for Revised U.S. Copyright Law . 88th 
Cong., 2d Sess. 17 (House Comm. Print 1964). 



329 

14 
copyright) .^^ 

With respect to terminations of transfer of works created 
after the effective date of the new law (as well as transfers 
executed after that date) , the Office offered two alternatives in 
Section 16. Alternative A contained an inalienable 20 year limit on 
transfers. Alternative B permitted authors or their successors to 
bring suit to recover strikingly disproportionate profits received 
by the assignee beginning 20 years after the transfer. 

For both termination of transfers of "old" and "new" works, 
the draft provided that a licensed derivative work prepared before 
termination could continue to be exploited according to the terms 
of the license after termination, but no new derivative works could 
be created. This right was particularly important to motion picture 
companies and encyclopedia publishers, whose works frequently 
included multiple contributions. 

In Copyright Office meetings on the draft, then Chief of the 
Examining Division Barbara Ringer, in discussing Section 16 stated 
that the section had proved to be quite controversial, with strong 
opposition. ^^ At the same time, though, she added a belief that 
the support for "the basic principle [that] some sort of time 
limitation on transfers of copyright ownership may be as strong and 
deep-seated as the opposition."* 

Opposition to the section was voiced by the motion picture 
industry*^ and the book publishers*^ who argued that contractual 



^^ A written notice of termination had to be served on the 
transferee six months before the termination became effective, and 
had to be recorded in the Copyright Office. Unlike the bill passed 
in 1976, there was, though, no "window" within which the notice had 
to be served. 

^' Copyright Law Revision Part 3 at 277. . 

*° Id. See also id . at 277-278, explaining various positions. 

^^ Id. at 278-281, 288-289. Motion picture companies favorably 
remarked on a provision that permitted the owner of a derivative 
work (such as a motion picture version of a novel) prepared under 
the authorization of a transfer to continue to exploit the 
derivative work after termination, but believed that even in cases 
of non-derivative works (as in a screenplay) , they should be able 
to continue to exploit the work on a non-exclusive basis after 
termination. Copvriaht Law Revision Part 4; Further Discussions and 
Comments on Preliminary Draft for Revised U.S. Copyright Law . 88th 
Cong., 2d Sess. 40 (House Coram. Print 1964). Although this proposal 
appears reasonable, in many cases (particularly with motion 
pictures) , a non-exclusive licensee who continues to exploit the 



330 



15 

freedom and investment should be respected, as well as music 
publishers, who argued that the potential value of many 
compositions is not ascertainable until years after the work is 
published.*^ Authors groups "ardently" supported a termination (or 
as it was also called, a reversion) right.*'* 

Authors offered a number of defenses. First, a single, unified 
term of protection (whether 75/100 years or life of the author plus 
50 years) , would place authors in a worse condition than the 
existing law unless a termination right was provided,*^ since 
under the existing law contracts for both the original and renewal 
term were not supposed to be enforceable, and even though the 
Supreme Court had thwarted Congress's intent in this respect in the 
Fred Fisher opinion,*^ if the author died before the renewal term, 
his heirs nevertheless got the copyright back free and clear of all 
assignments. Second, the only reason authors sign away their 
copyrights for long periods of time is the unequal bargaining 
position they find themselves in in negotiating with publishers. 
And finally, "the basic terms of a book contract are the seune 
wherever you go," including a requirement that the author assign 
both the original and renewal term.*' This conclusion was 
supported by a reputed statement from a book publisher that, "I 
have never in my entire publishing experience accepted a grant of 
rights to publish a book for only one term. I hope I never have to. 
I know of no other publisher who has ever accepted a grant of only 
a single term. We all accept grants of only the original and 
renewal terms, "*^ 

It was argued that authors, not publishers, should benefit 
from any extension of term (beyond the then-granted 56 years) for 
subsisting copyrights because publishers had only bargained and 



work may, as a practical matter, preclude the author from marketing 
the work to anyone else, 

*2 Id. at 281-283, 290-292, 300, 341-343. 

^^ id, at 283. 

** Id, at 286-287, 293-295, 296-197. 

^^ See Copyright Law Revision Part 5; 1964 Revision Bill with 
Discussions and Comments . 89th Cong., 1st Sess, 161 (House Comm. 
Print 1965) (remarks of Harriet Pilpel) . 

*^ See page 11. 

*'' Id. at 287. 

^® Copyright Law Revision Part 5; 1964 Revision Bill with 
Discussions and Comments . 89th Cong., 1st Sess. 155-156 (House 
Comm. Print 1965) . 



331 



16 

paid for a 56 year term. The Authors Guild of America declared, 
referring to the then existing 28-year renewal term and the 
proposed extension of that term by 19 years: 

[Book publishers] sit down and carefully estimate 
what their 50 percent share of those 28 years of 
earnings will be, and they pay a modest portion of 
it as an advance. 

I don't see how they'd be hurt one iota if they 
don't get the next 19 years ... . [T]hey haven't 
paid for it or bargained for it. They've simply 
computed the value of a 2 8 -year annuity, and they've 
had a full and fair opportunity to recover that and a 
profit as well.^' 

Similarly, the American Guild of Authors and Composers stated 
that 

[Music publishers] aren't bargaining for any more 
than 28 years. They're not giving an advance of $15,000 
saying, "Well, $13,000 for 28 years and $2,000 if we get 
a few more years if [Congress] extend[s] the law." They 
are bargaining for 28 years, and they have thrown in the 
other wording on the theory that "if we can get it 
good; if we can't well then we have lost just a few 
words. We haven't lost a single dollar. "^^ 

This reference to "other wording" was to a previous statement 
by an attorney whose firm had been representing music publishers 
since 1919, and had inserted the following language in all 
contracts with songwriters: 

If the copyright law of the United States now in force 
shall be changed or amended so as to provide for an 
extended or longer term of copyright, then the writer 
hereby sells, assigns, transfers, and sets over unto 
the publisher, its successors and assigns or designees, 
all his right, title, and interest in. and to said musical 
compositions covered by this agreement, for such extended 
or longer term of copyright.^ 

This practice of inserting this clause in contracts was 
common. ^^ These are, though, the contracts that H.R. 989 will. 



Id . at 43. But see criticism of this characterization of 
"advances," id, at 45, and its defense, id. 

^° Idj. at 42. 

^^ Id. at 39. 

^^ See id. at 41, 45. 



332 



17 

unless amended, enforce: contracts dreamed up by lawyers as early 
as 1919 (ten years after the 1909 Act) on the off-chance that some 
time in the distant future Congress might extend the term, and if 
and when that occurred, maybe, just maybe, Congress would let them 
get away with boilerplate language assigning publishers all future 
rights, even though those rights had not been paid for. 

The 1964 Revision Bills 

In 1964, the first revision bills were introduced. ^^ Section 
20(a) of the bills adopted, for new works, the term of life of the 
author plus 50 years, or, where the work was not created by an 
individual, 75 years from first publication or 100 years from 
creation, whichever occurred first. ^* For old act works, the bills 
kept the durational structure of the 1909 Act: an original term of 
28 years plus a renewal term of 28 more years (if timely applied 
for) , but as in the 1963 preliminary draft, an extra 19 years was 
tacked on to the renewal term for a total of 75 years: 28+28+19. 

Again, as in the 1963 draft, there were termination of 
transfer provisions both for assignments executed before the 
effective date of the bills (governing, therefore, the extra 19 
years) and for assignments executed after the effective date 
(governing, mostly, but not exclusively works with a life of the 
author plus 50 years term) . 

For assignments of "old act" works, the author or his heirs 
could terminate the extra 19 years beginning in the first year of 
the extra 19 years (i.e., in year 57 of the copyright) if they had 
served a written notice on the assignee one year before the 
effective date of the termination and recorded a copy of the notice 
with the Copyright Office. ^^ For assignments of "new act" works, 
the assignment could be terminated at any time beginning 35 years 
after the execution of the assignment, but notice of termination 
had to be made two years before the effective date.^^ 

For both termination of transfers of "old" and "new" works, 
the draft provided that a licensed derivative work prepared before 



^^ S. 3008, H.R. 11947, H.R. 12354, 88th Cong., 2d Sess, 
(1964) . 

^^ The bill also provided for a uniform, federal system by 
protecting all unpublished works. 

^^ As with the 1963 draft, there was no "window" period within 
which the notice had to be filed. 

^^ For new act (but not old act) transfers, there were 
exclusions from the termination right for transfers by will and 
works made for hire. 



333 



18 



termination could continue to be exploited according to the terms 
of the license after termination, but no new derivative works could 
be created. 

Discussions on the bills held at the Copyright Office with 
private sector groups showed strong opposition to the reversion 
(termination of transfer) provisions by book and music 
publishers^' and by the motion picture and television industries, 
who described the provisions as "at best misguided paternalism." 
Authors' groups defended the provisions as essential to preserving 
the status quo authors were supposed to enjoy under the 1909 Act 
and as protecting authors from the unequal bargaining leverage of 
purchasers of copyright. ^° At the same time, authors' 
representatives objected to making the author wait 35 years before 
a "new act" transfer could be terminated, noting that in his 1960 
report to Congress, the Register had indicated the period should be 
20 years, and that the 1963 draft bill had set the date at 25 
years . *^ 



The 1965 Bills and House hearings. Register of Copyrights' 
1965 Report 

The 1965 revision bills^^ retained the 1964 bills' provisions 
on duration, but made extensive changes in the termination 
provisions that greatly complicated them for authors, thus ensuring 
that their utility would be greatly diminished. The changes. 



^' See Copvriaht Law Revision Part 5; 1964 Revision Bill with 
Discussions and Comments . 89th Cong., 1st Sess. 154-155, 156, 157, 
222, 225-226 (House Comm. Print 1965). 

The book publishers characterized the provisions as 
"intolerable" and stated their "unequivocal opposition to any form 
of reversion," claiming that out-of-print clauses vesting the 
copyright back in the author if the book remained out of print for 
five years adequately protected authors. The out-of-print argument 
was plainly ridiculous: publishers were willing to give the 
copyright back to the author only when they determined the work no 
longer had any commercial value. 

^^ Id. at 160, 162, 299-300. 

^' See page 11. 

^° Id. at 155-156, 157, 158, 162, 163, 240-250, 257 (making 
suggestions for amendments) . 

^^ Id. at 241. 

" S. 3008, H.R. 11947, 89th Cong., 1st Sess. (1965). 



334 



19 



nevertheless, or perhaps predictably, reflected a compromise that 
had been worked out.*^ With the exception of amendments made in 
1966 clarifying who may terminate and specifying the allocation of 
the terminated interests, ^^ the termination provisions in the 1965 
bills are identical to those incorporated in the 1976 Act. This 
fact is significant because it demonstrates that the parties stuck 
with the compromise for eleven years while the revision process 
struggled through a number of explosive issues. Indeed, the 
compromise has been followed by all the parties until last month, 
Jxine 1995, when music publishers at the Pasadena hearing indicated 
they would send the Subcommittee a proposed amendment to Section 
203 further delaying the 35 year termination period. 

The differences between the 1964 and 1965 bills are as 
follows: (1) the 1965 bills permitted nonexclusive licenses to be 
terminated^^ ; (2) transfers of copyrights in wills were excluded 
from the termination right; (3) termination was limited to the 
author, or if he was deceased, his widow and children;"* (4) under 
Section 203, termination could be made only during a five year 
window commencing at the end of 35 years from the execution of the 
transfer;^' (5) the termination notice could be served not less 
than 2 or more than 10 years before the effective date of the 
termination, with recordation made a condition of the 
termination ;^° (6) where the author was deceased, the termination 
notice had to be filed by all those entitled to terminate;^^ (7) 



^^ See Copyright Law Revision: Hearings on H.R. 4347 et al 
Before the Subcomm. on Courts. Civil Liberties and the 
Administration of Justice of the House Judiciary Comm. . 89th Cong. , 
1st Sess. 148-149 (1965); Mills Music, Inc. v. Snyder, 469 U.S. 
153, 17-176 (1985) . The compromise also involved amending the work- 
for-hire provisions in publishers' favor. 

^'^ See H.R. 4347 as reported by the House Judiciary Committee, 
H.R. REP. NO. 2237, 89th Cong., 2d Sess. (Oct. 12, 1966). 

^^ The 1964 bills Were limited to exclusive licenses. 

^^ The 1964 bills included legal representatives and 
legatees. 

^' The 1964 bills permitted the termination to be filed at any 
time after the 35 years had elapsed. 

^° The 1964 bills had the 2 year, but not the 10 year 
provision. They also required recordation with the Copyright 
Office, but did not state that the failure to record rendered the 
termination ineffective. 

^' By contrast, the 1964 bills more liberally required only a 
"written notice." 



335 



20 



to ensure that the termination right was inalienable and 
unwaivable, no agreement to transfer rights after termination would 
be valid unless entered into after termination had occurred, with 
the exception that a future agreement between the author and the 
original transferee would be valid if entered into after the notice 
of termination has been filed; (8) the proportionate shares between 
the widow and children were specified. 

In preparation for the first congressional hearings on the 
revision effort, Register of Copyrights Abraham Kaminstein issued 
a supplementary report. '° The report traces the origins of the 
termination of transfer provisions to the failure of the 1909 Act 
to adequately give authors a second bite at the apple. 
Although noting the objections of publishers and the motion picture 
industry, who asserted that authors are not generally in a poor 
bargaining position, the Register concluded that the Copyright 
Office "remained committed to the general principle of reversion as 
one of the most important elements of the copyright law revision 
program."'^ 

At hearings before the House in 1965, the parties noted their 
individual wishes that the bill had been more favorable to them, 
but stuck by their compromise on termination, and strongly 
supported the life plus 50 term.'-' 

How the Term of Protection Provisions in the 1976 Act Work 

The 1976 Act's treatment of duration may be divided into three 
parts: (1) works created on or after January 1, 1978; (2) works 
unpublished and unregistered on January 1, 1978. 

Works Created On or After January 1, 1978: Section 302 



'° Copyright Law Revision Part 6; Supplementary Report of the 
Register of Copyrights on the General Revision of the U.S. 
Copyright Law: 1965 Revision Bill . 89th Cong., 1st Sess. (House 
Comm. Print 1965) . 

''^ Id. at 71-72. 

'2 Id. at 72. 

'^ See Copyright Law Revision: Hearings on H.R. 4347 Before 
Subcomm. No. 3 of the House Judiciary Comm . . 89th Cong., 1st Sess. 
82-84, 92-94, 95-96, 1761-1765 (Authors League) ; 129, 142, 147-148 
(book publishers); 162-164 (magazine publishers); 228-234, 239, 
242-245 (American Guild of Authors & Composers); 251, 255, 257 
(magazine photographers); 996-997. 1010, 1035-1037, 1048-1049 
(motion picture companies); 1866-1870 (Copyright Office) (1965) . 



336 



21 



For this category of work, the 1976 Act adopted a basic term 
of life of the author plus 50 years. Where the work is made for 
hire, anonymous, or pseudonymous the term is 75 years from first 
publication or 100 years from creation, whichever occurs first. 

Works Unpublished and Unregistered on January 1, 1978: 
Section 303 

This category encompasses works formerly under perpetual state 
common law copyright. The 1976 Act preempts that state protection 
and substitutes a somewhat complicated system. The minimum term of 
protection for these works is December 31, 2002, but if the work is 
published before that date, the term is extended until December 31, 
2027. Alternatively, if a longer term is possible under the life 
plus 50 regime, that regime is applied. 

Works Pxiblished Before January 1, 1978 

These works were formerly governed by the 1909 Act's 28+28 
year term: 28 years from first publication, with another 28 year 
renewal term if a timely renewal was filed. The 1976 Act 
essentially incorporated the 1909 Act's term structure into the 
1976 Act for these works, but added on an additional 19 years to 
the renewal term for a possible total of 75 years (28+28+19). Where 
a work was in its first term on January 1, 1978, a timely renewal 
application still had to be filed.'* If the renewal application 
was timely filed, the author was granted a 47 year renewal term. If 
the work was in its renewal term on January 1, 1978, it was 
automatically granted a 47 year term. 

Termination of Transfers 

At an August 1964 meeting at the Copyright Office with the 
private sector on the first revision bills, an in-house lawyer for 
Time, Inc. expressed an opinion that the termination of transfer 
provisions would not help authors because they were too complicated 
and would instead "realistically" only benefit private sector 
attorneys "who are going to make a lot of money out of it."'^ This 
comment was made, interestingly, before the provisions became 
appreciably more onerous for authors in the 1965 bills. Evidence 
being compiled by the Copyright Office for this hearing bears out 
the prediction. 



'* This requirement was finally abandoned in the Automatic 
Renewal Act of 1992, Act of June 26, 1992, Pub. L. No. 102-307 
(title I), 102d Cong., 2d Sess., 106 Stat. 264, but that act only 
governs works that were first published between 1964 and 1977. 

'^ See Copyright Law Revision Part 5: 1964 Revision Bill with 
Discussions and Comments . 89th Cong., 1st Sess. 166 (House Comm. 
Print 1965) (remarks of E. Gabriel Perle) . 



337 



22 

There are two termination of transfer provisions in the 1976 
Act, Sections 203 and Section 304(c). They are very similar, but 
not identical. Section 304(c) governs transfers and licenses 
executed before January 1, 1978 and thus is limited to 1909 Act 
works whose term is measured from the date of first publication. 
Section 203 covers transfers and licenses executed on or after 
January 1, 1978 and thus covers three categories of works: (1) 
works that were subject to common law copyright on January 1, 1978; 
(2) works protected under the 1909 Act that were in their first or 
renewal term on January 1, 1978, but where the transfer or license 
was executed on or after that date; and (3) works created on or 
after January 1, 1978, and thus governed by the term structure of 
the 1976 Act. The possibility of termination under Section 304(c) 
began on January 1, 1978. Terminations under Section 203 cannot 
begin until January 1, 2013. 

Termination under Section 304(c) 

The termination right under Section 304(c) is only for the 
extra 19 years added on to the 28 renewal term of the 1909 Act. The 
provision is quite complex: 

(1) Grants covered 

(a) exclusive or nonexclusive transfers or 
licenses of renewal rights 

(b) executed before January 1, 1978 

(c) by a renewal claimant covered by the 
second proviso of Section 304(c) 

(d) with respect to a work in its first 

or renewal term of statutory protection 

(2) Persons who may exercise the right 

(a) as to grants by author(s): 

(i) the author (s) to the extent of the 
author's interest (§304 (c) (1) ) ; 

(ii) if an author is dead, by owners of more 

than one half of the author's termination 
interest, such interest being, owned as follows: 

(A) by surviving spouse if no children 
or grandchildren; 

(B) by children and surviving children of 
dead child if no surviving spouse, per 
stirpes and by majority action; or 

(C) shared, one half by widow (er) and one 
half by children and deceased child's 
children (§304 (c)(1) and (4)). 

(b) as to grants by others — all surviving grantors 
(§304(c) (1) and (4)). 

(3) Effective date of termination 

(a) designated time during five year period 
commencing on later of: 

(i) beginning of fifty-seventh year of copyright or 
(ii) January l, 1978 (§304 (c) (3) ) . 



338 



23 

(b) upon 2 — 10 years notice ($304 (c) (4) ) . 

(4) Manner of Terminating 

(a) written and signed notice by required persons 
or agent's to grantee or grantee's "successor 
in title" 

(b) specification of effective date, within above limits 

(c) form, content, and manner of service in accordance 
with Copyright Office regulation (§304 (c) (4) (B) ) ; 
37 C.F.R. §201.10)''^ 

(d) recordation with the Copyright Office before 
the effective date (§304 (c) (4) (A) ) 

(5) Effect of termination 

(a) of grant by author 

(i) reversion to that author, or if dead, those 
owning the author's termination interest 
(including those who did not join in signing 
the termination notice) in proportionate 
shares (§304 (c)(6) and (c)(6)(C)) 

(b) of grant by others — reversion to all entitled 
to terminate (§304 (c)(6)) 

(c) in either case, future rights to revert upon 
proper service of notice of termination 
(§304) (c) (6) (B)). 

(6) Exceptions to termination 

(a) works made for hire are not subject to termination 

(b) dispositions by will are not subject to termination 



'^ These regulations require that the notice be served upon 
each "grantee" whose rights are being terminated, or "the grantee's 
successor in title," by personal service, or by first-class mail 
sent to an address "which, after a reasonable investigation, is 
found to be the last known address of the grantee or successor in 
title," 37 CFR §201. 10 (d) (1) , The regulation further provides that 
"a reasonable investigation" includes but is not limited to a 
search of the records in the Copyright Office. Id. §201, 10(d) (3) . 
In the case of musical performing rights, a report from a 
performing rights society identifying the person (s) claiming 
current ownership of the rights being terminated is sufficient. Id . 
For a discussion of the term "successors in title," see Burroughs 
V. MGM, 491 F. Supp. 1320 (SONY 1980); 519 F. Supp. 388 (SONY 
1981), aff 'd . 683 F.2d 610 (2d Cir. 1982). One issue in Burroughs 
was the meaning of "successors in title." Is the term limited to 
transferees of exclusive rights, or does it also include 
nonexclusive licenses? Although the issue was not reached by the 
Second Circuit majority. Judge Newman, in a concurring opinion, 
reasoned that since the Copyright Office regulations speak of 
providing for a reasonable investigation of "ownership," and since 
under Section 101 of the Act a "transfer of ownership" includes 
assignments and exclusive licenses but excludes nonexclusive 
licenses, see 17 USC §101, the term must be construed accordingly. 
This reading of "successor in title" is believed to be correct. 



339 



24 



(c) derivative works prepared under a transfer or 
licensee executed prior to termination may continue 
to be utilized under the terms of the transfer, 
but with no right to make new derivative rights 
(S304(c)(6)(A))" 

(d) rights that arise under any other federal statute or 
under any state or foreign law are not affected 
(S304(c) (6) (E)). 

(7) further grants of termina ted rights 

(a) each owner is regarded as a tenant in common 
except that a further grant by owners of a 
particular deceased author's terminated rights 
must be in the same number and proportion of 

his or her beneficiaries as required to terminate, 
but then binds them all, including nonsigners, 
as to such rights 

(b) must be made after termination, except that, as to 
original grantee or successor in title, it may 

be after notice of termination. 



While there is no form for termination notices. Copyright 
Office regulations specify that the notice must contain a "complete 
and unambiguous statement of facts . . . without incorporation by 
reference of information in other documents or records,"^" and 
include the following: 

(1) the name of each grantee whose rights 
are being terminated and each address 
at which service is made; 

(2) the title and the name of at least one 
author of, and the date copyright was 



"" In Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), the 
Supreme Court reversed a lower court opinion construing this 
provision as granting the author all of the royalties from the 
exploitation of the sublicensed derivative works after termination 
of the original grant. Under Mills Music, middlemen (transferees 
who have granted sublicenses) are entitled to share in the 
royalties from the derivative work's continued exploitation 
according to the terms of the original contract. See former 
Register of Copyrights Barbara Ringer's criticism of Mills Music in 
Civil and Criminal Enforcement of the Copvright Laws; hearing 
Before the Subcomm. on Patents. Copyrights, and Trademarks of the 
Senate Judiciary Comm. . 99th Cong., 1st Sess. 79-95 (1985); and 
generally The Copyright Holder Protection Act; Hearings on S. 1634 
Before the Subcomm. on Patents. Copyrights, and Trademarks of the 
Senate Judiciary Comm. . 99th Cong., 1st Sess. (1985). 

'^ 37 CFR S201.10(b) (2) . 



340 



25 

originally secured in, each works to 
which the notice applies (including if 
available the copyright registration 
number) ; 

(3) a brief statement reasonably identifying 
the grant being terminated; 

(4) the effective date of the termination; 

(5) the name, actual signature, and address 
of the person executing the termination. '' 



In the case of works consisting of a series or containing 
characters, special care has to be taken to list separately each 
and every work in the series or all works in which the character 
appears. ° A complete copy of the termination notice must be 
recorded with the Copyright Office before its effective date of 
termination, and such recordation must be accompanied by a 
statement setting forth the date on which the notice of termination 
was served and the manner of service (unless the information is 
already contained in the notice) ^■'^ and by the prescribed fee.®^ 

The Section 304(c) termination right is inalienable and 
unwaivable,^-' but further grants may be made after termination. 
An agreement to make a further grant may be made after the notice 
of termination has been given (but before termination is effective) 
if that agreement is made between the author or designated 



'^ 37 CFR SS201. 10(b) (1) and (c)(1), (4). A duly authorized 
agent may also sign the notice but care should be taken to clearly 
identify the person(s) on whose behalf the agent is acting. 37 CFR 
§201. 10(c) (3) . 

^° See Burroughs v. MGM, 491 F. Supp. 1320 (SONY 1980); 519 F. 
Supp. 388 (SONY 1981), aff 'd . 683 F.2d 610 (2d Cir. 1982) (a notice 
of termination listing 35 titles (including the first "Tarzan" 
story) , but omitting five sequels in which the character Tarzan 
appeared, was found to be ineffective in preventing the grantee's 
continued use of the Tarzan character). Cf. Judge Newman's 
concurring opinion, in which although agreeing in the result, he 
disagreed on the effect of not terminating the five sequels, 
reasoning that the right to base a motion picture on those sequels 
would permit uses not derived from the sequels. 

^^ 37 CFR §201. 10(f) (i) , (ii) . 

^^ 37 CFR §201. 10(f) (2) . 

" 17 use §304 (c)(5): "Termination of the grant may be 
effected notwithstanding any agreement to the contrary, including 
an agreement to make a will or to make any future grant." 



341 



26 



Statutory successors and the original grantee.^* This provision, 
erroneously described sometimes as a "right of first refusal," does 
not give the original grantee a right to conclude such an 
agreement; it only means that if such an agreement is made, it will 
be enforceable.^^ 

Termination Under Section 203 

Section 203 's provisions are similar but not identical to 
Section 304(c), but are equally complex: 

(1) Grants covered 

(a) exclusive or nonexclusive transfers 
or licenses 

(b) executed on or after January 1, 1978 

(c) by an author 

(d) as to any work 

(i) created before or after January 1, 1978; 
(ii) subject to common law copyright ($303); 
(iii)in first-term copyright (§304 (a)); 
(iv) in renewal term (§304 (b)) 

(2) Persons who may exercise right 

(a) the author or a majority of the authors 
who exercised it (§203 (a) (1) ) ; 

(b) if the author is dead, his or her right 
may be exercised by (or if the author was a 
joint author, the author's interest may be 
"voted" by) majority action of the owners of 
more than one half of author's termination 
interest, such interest being owned as follows: 

(i) by surviving spouse (if no children 
or grandchildren) 

(ii) by children and surviving children of 
deceased child (if no surviving spouse) 
per stirpes and by majority action or 
(iii) shared, one half by widow and one 
half by children and deceased child's 
children. 

(3) Effective date of termination (§203(aJ(3)) 

(a) designated time during 36th through 40th 
year after grant or 

(b) if grant covers right of publication, 
designated time during five year period 
beginning on the earlier of the following 
dates : 

(i) 35 years after publication 
(ii) 40 years after grant. 



^^ 17 use §304(C) (6) (D) (1978) . 

®^ Bourne v. MPL Communications, 675 F. Supp. 859 (SONY 1987), 
678 F. Supp. 70 (SONY 1987). 



342 



27 

(4) Manner of terminating 

(a) written and signed notice by required 
persons to "grantee or grantee's successor 
in title" (§203 (a) (4)) 

(b) specification of effective date, within 
above limits (§203 (a) (3)) 

(c) form, content, and manner of service in 
accordance with Copyright Office regulations 
(S203(a) (4) (B) ; 37 CFR §201.10) 

(d) recordation in Copyright Office before 
effective date (S203 (a) (4) (A) 

(5) Effect of termination 

reversion to author, authors, or others owning 
author's termination interest (including those 
who did not join in signing termination notice) 
in proportionate shares (§203 (b)). 

(6) Exceptions to termination 

(a) work made for hire are not subject to termination; 

(b) dispositions made by will are not subject to 
termination ; °^ 

(c) derivative works prepared under a transfer or 
license executed prior to termination may continue to be 
utilized, but with no right to make a new derivative 
work (§203 (b) (1) 

(d) rights that arise under other federal statute or 
under any state or foreign law are not affected 
(§203(b) (5)). 

(7) Further grants of terminated rights (§203(b)(3)) 

(a) must be made by same number and proportion of 
owners required for termination, then binds all 
(§203(b) (3)) 

(b) must be made after termination, except, as to 
original grantee or successor in title, may be made 
after notice of termination (§203 (b) (4) ) . 

The key distinctions between termination rights under Section 
304(c) and 203 may be summarized as follows: 

Section 304(c) Section 203 

Grants covered 

Before January 1, 1978 On or after January 1, 1978 



®^ See Larry Spier, Inc. v. Bourne Co., 953 F.2d 774 (2d Cir. 
1992) for a discussion of this provision. 



343 



By author or other "second 
proviso" renewal beneficiary 

Of renewal right in 
statutory copyright 



28 
By author^"' 

Of any right under copyright 



Author or majority of granting 

authors or majority of their 
respective beneficiaries, voting 
as a unit for each author and 
per stirpes 



Persons who mav exercise 

Author or majority interest 
of statutory beneficiaries 
( per stirpes ) to the extent 
of that author's share; or 

In case of grant by others, 
all surviving grantors 

Beginning of five-vear 
termination period 

End of 56 years of copyright End of 35 years from grant of, if 
or January 1, 1978, covering publication right, either 

whichever is later 35 years from publication or 40 years 

from grant, whichever is earlier 



Further grants 

Grantors are generally 
tenants in common with 
right to deal separately, 
except where dead author ' s 
rights are shared, then 
majority action ( per 
stirpes ) as to that 
author's share 



Requires same number and proportion 
as required for termination 



^' The reason for limiting the Section 203 termination right 
to the author was explained as follows in the Register of 
Copyrights' 1965 report, "as a result of the present renewal 
provisions, a large number of binding transfers and licenses 
covering renewal rights have been executed by the author's widow, 
children, and other statutory beneficiaries, as well as the author 
himself. We believe that, for example, where the author's widow was 
the proper renewal claimant but had previously executed a transfer 
of her renewal rights, she should be able to gain the extended term 
after the present 28-year renewal period is over." SUPPLEMENTARY 
REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE 
U.S. COPYRIGHT LAW: 1965 REVISION BILL, 89th Cong., 1st Sess. 96 
(House Comm. Print 1965} . 



344 



29 

Section 203 also poses the following conundrum in its 
interrelation with Section 304(a). Works first copyrighted as late 
as 1977 enjoy both a termination right and a renewal right. If the 
author's renewal contingency does not vest, there may be no 
termination right at all, since post-1977 grants by other renewal 
beneficiaries are not terminable under Section 203. Moreover, 
suppose a grant is made in 1978 by an author who later decides to 
terminate at the earliest possible moment. To exercise the 35-year 
teinnination right in 2013, the author may give notice 10 years 
earlier, in 2003. Although Section 203 provided (as does section 
304(c)) that the future rights to be terminated "vest" upon service 
of such notice, the renewal provision still must be taken into 
account, since 2003 is only the 25th year of the first term 
copyright. If the author dies shortly after service of the 
termination notice and the author's widow(er) renews two years 
later, what is the effect of the author's termination notice?®^ 

The astonishing complexity of these provisions eunply 
demonstrates why they have not served their purpose of permitting 
authors and their families to get a second bite at the apple, 
despite Congress's 86 year effort to do so. There is no reason to 
perpetuate such an obviously flawed system. The solution is simple, 
obvious, and effective: vest the proposed new 20 years directly in 
the author or his heirs, 

H.R. 989 

H.R. 989 seeks to extend the term of copyright protection by 
adding on an extra 20 years for both "old act" and "new act" works. 
New act works by individuals will go to life of the author plus 70 
years. New act works that are made for hire, anonymous, and 
pseudonymous works and old act works will go to a term of 95 years 
from first publication, or 120 years from creation, whichever 
occurs first. The basic rationale for this increase is the 
reciprocal nature of the European Union's 1993 term directive. 

In order to harmonize the various laws of its member countries 
toward the goal of a single market without (internal) trade 
barriers, the European Union ("EU") has issued a number of 
directives establishing a single law for all EU countries.®^ Some 
of these directives have been in the field of intellectual 
property, including copyright. In the case of term of copyright 
protection, most EU countries have a term of life of the author 



°® See Dreben, Section 203 and a Call for a Hurried Review . 
THE COPYRIGHT ACT OF 1976: DEALING WITH THE NEW REALITIES 229, 
232-233 (N.J. Copr. Soc'y 1977). 

®^ The directives are not self -executing: they must be 
implemented by domestic legislation in each country. 



345 



30 

plus 50 years, the 50 years being intended to benefit the author's 
children and grandchildren. A few EU countries, however, have a 
term of copyright longer than life plus 50, at least for certain 
categories of works, such as musical compositions. Given these 
differences in term, the EU had three choices: (1) do nothing, 
allowing different terms; (2) issue a directive requiring all 
member countries to follow the predominant life plus 50 term (also 
found in the Berne Convention and in the GATT agreement); or, (3) 
issue a directive requiring all member countries to adopt the 
higher term found in the minority number of countries. 

The first option was clearly undesirable because it would 
perpetuate the very sort of inconsistencies that directives are 
intended to eliminate. The second option was also believed 
undesirable because it would take away protection from authors in 
countries that granted a term longer than life plus 50.'° 
Accordingly, the third option, harmonizing the term of protection 
up was chosen. The EU's October 29, 1993 directive on the term of 
copyright thus establishes a basic term of copyright of life of the 
author plus 70 years. The directive is to be implemented by EU 
member countries by July 1, 1995. However, like past EU Directives, 
most member countries will take years after that date to actually 
implement the directive. France has yet to implement the 1991 
computer program directive. Few countries have implemented the term 
directive, and thus internationally, there is no reason 
precipitously to pass a bill this session of Congress. 

with respect to the question of the term granted works by 
authors from non-EU countries. Article 7 of the directive 
essentially states that works from non-EU countries, such as the 
United States, will be given in the EU the term of protection 
granted by the non-EU country, and not the term granted by the EU. 
Thus, if the United States grants a term of life of the author plus 
50 years, works of U.S. authors will receive that term in the EU 
and not the life plus 70 term EU authors enjoy. On the other hand, 
if the United States grants a term of life of the author plus 70 
years, works of U.S. authors will receive that term in the EU. 

Music publishers, the estates of music composers who published 
songs in the 1920s and 1930s, and others have argued that U.S. law 
needs to be changed so that they may take advantage of this extra 
20 years protection in the EU. My concern is not so much with going 
to a life plus 70 term (aside from the music publishers' Section 
203 proposal) , but with how, for old act works, authors can be 



See Preface to the Directive, paragraph (9) : "Vfhereas due 
regard for established rights is one of the general principles of 
law protected by the Community legal order; whereas, therefore, a 
harmonization of the terms of protection of copyright and related 
rights cannot have the effect of reducing the protection currently 
enjoyed by rightsholders in the Community... ." 



346 



31 
better protected than they currently are in H.R. 989, 

As discussed above, the basic term of copyright in the United 
States for works created before January 1, 1978 is 75 years from 
the date of first publication, but it is important to realize that 
this 75 years is not an undifferentiated period, but is instead an 
aggregation of 28+28+19 years, with the 19 years having been added 
by the 1976 Act. Congress, in drafting the 1976 Act, considered 
converting, retroactively, the 1909 Act's cumbersome 28+28 term to 
a term of life plus 50 years, but declined to do so because of the 
argvunent that this would be unfair to transferees who had purchased 
both the original and renewal copyright terms by assignment from 
authors: switching to a life plus 50 term for these already 
assigned works would, it was said, would deprive them of their 
bargain, i.e., to exploit the work without the author's further 
permission during the "full term" of copyright, which was at that 
time 56 years. As a result, for "old act" works (works published 
before January 1, 1978), the 1976 Act continued the 1909 Act's 
structure of measuring the term of protection from publication, 
rather retroactively providing them a life plus 50 term. See 
Section 304 of the 1976 Act. 

In my opinion, the failure to convert to a life plus 50 term 
for old act works was a mistake and confused two different issues: 
the first being how to measure the term of protection, the second 
being the need to honor a transferee's contract to exploit a work 
for a maximum of 56 years. This unfortunate decision has caused 
U.S. trade negotiators innumerable difficulties overseas as they 
attempt to persuade foreign countries that we want them to give our 
works — old and new — a life plus 50 term, even though we don't 
give our works (or theirs) that term in the case of old act works. 
The trade negotiators gamely argue that 75 years from first 
publication is the actuarial equivalent of life plus 50 years, but 
this is met with skepticism, skepticism that was eminently 
justified before the end of 1992 since before that date if a proper 
renewal application was not filed, the author would only get a 28 
year term. I have heard that some foreign countries are refusing, 
in their GATT retroactivity legislation, to give U.S. works a life 
plus 50 term, and instead are proposing to give them as little as 
20 years based on our failure to give their pre-1978 works a term 
of life plus 50. At the end of my statement, I outline an amendment 
in the nature of a substitute to H.R. 989 that would take care of 
this problem by going to a life plus 70 term for pre-1978 works, 
yet would still honor transferees' contracts. 

There are, of course, some authors such as those in the 
Ansong group, who will benefit domestically and internationally 
from H.R, 989 as currently drafted because they can afford to 
employ a lawyer to timely file termination notices. But there also 
are a significant number of authors under H.R. 989 as currently 
drafted who will not fully benefit because they cannot terminate 



347 



32 

transfers for the 20 years granted under the bill. For these 
authors, the extended copyright granted in the bill will 
irrevocably vest in a transferee, even though the transferee did 
not bargain for the extra term. In fact, all the transferee ever 
bargained for was a copyright term of 56 years. 

Here's why this will occvir. There is no special termination of 
transfer right for the new 20 years granted old act works in H.R. 
989. Instead, the bill will apply the existing termination right in 
Section 304, or will it? Because the time limits for termination 
have not been emended, for works first published between 1920 and 
1933 (coincidentally important years for the Amsong group) , the 
five-year window for termination has already passed. These authors 
or their children can't terminate even if they want to. And with 
each successive year, authors or their children will lose the 
ability to terminate for another year's works: in 1996, authors and 
their children will no longer be able to terminate for works first 
published in 1934. 

This manifest unfairness can be prevented by vesting the extra 
20 years solely and directly in the author or his or her heirs. 
Purchasers of copyright can then renegotiate contracts and pay for 
the real value of the extra 20 years, rather than reaping the 
wholly undeserved windfall of a contract negotiated 75 years ago. 
This can be done either by amending the bill to simply vest the 
extra 20 years in the author, or, by going to a term of life plus 
70 for these old act works (as well as for new act works of 
course) . What follows is my life plus 70 proposal. 

Proposal for a Term of Life Plus 70 for All Works 

There are a number of ways to eunend the bill to protect 
authors. One way would be to convert to a term of life of the 
author plus 70 years (if the decision is made to extend the term) 
for old Act works, while still preserving the ability of the 
publisher to exploit the work according to the telrm of the original 
contract. This should also include the 1976 Act's extra 19 year 
term for works for which the author had to terminate the transfer 
between 1978 and 1995, thereby not disadvantaging transferees. (The 
author would still have the right to terminate where currently 
available) . This would, importantly, accomplish other objectives: 
it would prevent authors from outliving their copyrights, it would 
give the new 20 years to authors, it would harmonize U.S. law with 
EU law, and it would help our trade negotiators get a term of at 
least life plus 50 in foreign countries' GATT retroactivity 
provisions. 

Here's how the proposal would work in practice. Assume in 
1920, an author transferred his rights in both the original and 
renewal terms to a publisher. The publisher published the author's 



348 



33 



book in 1920. The author died in 1950.'^ The work was renewed in 
1948. Under the current regime, the copyright lasts for 75 years, 
expiring in 1995. Under a life plus 50 regime, the copyright would 
expire in 2000; under life plus 70 in 2020. 

The original contract between the author and publisher for the 
56 year tei-m granted in the 1909 act, as well as the 19 years added 
in the 1976 act, would be honored in the proposal, meaning that the 
publisher would receive the full benefit of its contract for 75 
years — until 1995. In 1996, the copyright would vest 
automatically in the author's heirs for the duration of the 
copyright — 202 under the life plus 70 year regime. The author's 
heirs would thus be free to negotiate a contract for the remaining 
25 years on the copyright. 

This approach would give to purchasers of copyright the full 
benefit of what they had bargained for with the author, plus the 
windfall they received in 1976. At the same time, it would place 
U.S. law in harmony with the rest of the world and would give to 
the author or the author's heirs the benefit of any extension of 
term consistent with Congress's power to grant copyright to benefit 
authors. 

Mills Music V. Snvder 

The 19 year termination right for old act works granted in 
Section 304 of the 1976 Act contained an exception for derivative 
works created under a grant from the author or transferee before 
termination. This exception permitted, for example, a record 
company that had licensed from a music publisher (which had itself 
been licensed by the composer) the right to make a record of a 
musical composition to continue to sell the.- records after 
termination, provided, of course, it continued to pay the 
previously agreed to royalties. These derivative royalties were, 
however, to go 100% to the author after termination. In Mills Music 
V. Snvder . ^^ the Supreme Court, in a 5-4 opinion held that the 
author does not get 100% of the royalties but has to share them 
with the music publisher according to the terms of the original 



^^ Because in a number of cases, a 75 year term provides a 
longer term than life plus 50 regime — in the hypo given in the 
text if the author died before 1945 — there will need to be a 
transitional section continuing copyrights presently protected by 
virtue of existing 75 year term, otherwise the result would be to 
place into the public domain works that are currently protected. An 
alternative to a transitional section would be to provide an 
"either/or" way of measuring term as in current section 303. Under 
such an alternative, the author or the author's heirs would receive 
the longest term possible — either under a life plus 70 or under 
the current law. 

'2 469 U.S. 153 (1985) . 



349 



34 

contract. 

The Copyright Office, which had drafted the section in 
question, passionately argued that the Supreme Court was wrong and 
had cheated songwriters out of an important part of the 1976 Act 
deal. A bill was introduced by Mr. Berman to overturn this 
erroneous decision, but it was not passed. H.R. 989, which is being 
pushed by music publishers, should correct Mills Music by requiring 
that the author receive 100% of the royalties. Music publishers 
should not reap the unfair advantage of Mills Music for yet another 
20 year term extension. Failure to reverse Mills Music will 
compound the injustice by depriving authors of the derivative 
royalties Congress intended them to have during the new 20 years. 

Reciprocity 

H.R. 989 is not reciprocal; that is, it grants a term of life 
of the author plus 70 years to works of foreign authors without 
requiring the foreign country to grant U.S. authors the same term. 
Thus, Japanese authors would enjoy a term of life of the author 
plus 70 years in the United States, while U.S. authors would only 
get life of the author plus 50 years in Japan. If the motivating 
force behind H.R. 989 is the reciprocal provisions of the EU term 
directive, it is perplexing that H.R. 989 is not reciprocal too. 
Reciprocal protection beyond life plus 50 is, moreover, consistent 
with — even required by — Article 7(8) of the Berne Convention. 

Thank you for the opportunity to testify, Mr. Chairman. 



9.^-9R7 QR _ 1 9 



350 



mssoMM 




■l!lliniJ,|i|UI.|iMl..lliMilii'lll.ll.i.lllMlil.li.|.|JI.I!l.l.l.llJ.il]J:liJ|i|.i.lJJl, 



The Thorny Issues Of Int'l Royalties 

R&B Acts ' Problems Just Scratch Surface 



NonfMiaieni contrsru. or ihrt^e In the L'^^ morv trconl campuiir> 

actcd ajnin»[ ihe vtiMn' uiicrvaL- *tv making «itein|io- Ui n-eufy Mime <it 

HtbivncKl u»« of «nj*u nurler" the huloncal mjuAtirvk aufrerr<t b> 

FOUNDAHON HH Jvifl 




BRTMRN 

pDREVEFl 



Radio Station Cap 
Elimination Ulcely 



• Inequiuble or TwneKiMent pub< fUB uMuu Royahy ntei^ of 109- mn 
luhinn contncu for BongvTitfn being wt, while unrwmipe<1 b)danc«> 

• Pir«<-> and unauthonierl iiM of «rebeing»Titt£non'iBillb(Mn1. M«rrh 
am>i.^' rTu>ier» 1 1 These ■ctMn:> luve entrenrieird «i^- 

• Mikleading lirenking by pinus niTiatni detavie tbuut Uw uirier mmm; of 

• Ljreles* hcensing bv legilimale ll'iulm-cduH fMif/r 'Oi 



ILLINOIS ACTS ENHANCE 
THE CHICAGO SCENE 



Ice's LJon Reigns 
As Calypso IQng 

■ BY ISAAC FERGUSSON 






IC7 RflOTtb nwrts the SR-yovnU 
letRnrr* 70Ui year ■■ a calyfau cum- 
in I^CM. Roanng Lwn made hu- 




Blessid Union Of Souls' 
'Home' Alone At No. 1 





NEW *L8UM C OHIW 



VAN MORR ISON 
DATS LI KC THIS 



DAIS (.me THIS 



351 



fl^rfHdRNY ISSUES OF INTERNATIONAL ROYALTIES 






II hpn^fil ^>t for 



auirr of what nfhV- thpv own or th 
ih^ir r^rorrtin^ are beinjr yxploiu 



o»V»«+>«herihi' 






> Sav^ Flovfl 
lhS«rtneySei 
A-vonat^s as rinancol manif 



rBB ! 



;. ~Thf r 



tunl-liKkstnnes Manv artiM^ 
cnLtlfr' rtont know where U) g( 

A.« KinK otill (Tcnnii and U 
t«^-ivp|\ he IS differpnl from 
ihrtaB 



r iheir live- 
rRABai 



nitT»r<l nirhu u 
ifwl roubl tav r 



ww» m-yi fwahjes at aJI ' 
r laheU mtp not handinfr o 



Say« AC 



lorp Ktn^ M^rwil with S«rienbeiT 
•am BVO says Lihrrman. "hf wa^ 
fiir ft" royaluo from Mortem Re- 
. from Carieu hi we mied and iro' 
If ropvn^U hucli " 
■*> Recorris. whK-h n*n» njrhO- to 
4'Nlpm nUkV ifi Europe, hv abio 



.nfn 



n,rht- 



make altempU lo finri lhe«e 
Hu^hevMV* "Manynf the 
ihemielve^ hno»"n u> a*, awl n 
been eajiv to Rnrt ' Hughe* 

label rienve* from lirewing ih 



the majonlvof ll 
for Europe to i 
Kecordv a label o 



EMI u>n*t ini*re«ted in N evert helea.*. 
we are talkinfr about putting out a fv^ 
thou«*nri ropie* of mart uUee. so the II- 
cenne fee* are not huge " 



negotiaied long before i\ 
lo hire manairm ami tl 
martietplaH- wv thuuirl 



i^«-ianHbep.n 
• inUTTWtJorwI 



queen * In hi." autobiogmphv. Littlp 
Rjcharri recaJb how when the i.**ue of 
royaliiei' wa* rained Duke Peacock 
chief Don Rohev punched hiri «> harri 
that he rteveioped a hemia 

My* Roger Armstrong, nunajnng Hi- 
reetor of Ace "The people running 
lhei»e Wielx ran from the cnminaJ to the 



EDITORIAL 

All Must Address Past Moral Failures 



T>ilt ■ Meed to en in wtuch one 

grat R4B m blUB matt cf the pMt 

In a MBtbng mnilten of the ens- 

Ml gtrauB </ Robert Jofanvn. Mi Co- 

himbto mm d ing i dating bech more 

eeee in I9B0. end. more recently, the 
bert-MlUng 'Foree* Gump" aound- 
tr*ck featured, aa befita Ka aub)eet 
mtfur. a chronokvai aawig nf RAB 
maMCT*. In addltioa rmmermu CD 
boi r«««perti»«a, aa a enbted with 
kivii« «botanM|i. m pennmM doc 
nneni of* BUM. mnvtafatr feitae 
creative en in AmoiekD maaic And 
reedere of Bfllbowd'a C o m re e mr y 
p^e n*y ranO a ptar by BMl 



S*cBy. the nuBk indtatry 



taontybe- 
«hbnw)- 
and-bntter Meoee reganluig the wel- 
fare <tf(heae vlvta. 
One of the nnuK tndoatry'i best- 

anugtypBiodafi 



protection for tbem- 
• and tt«ir famfltoa Wkh the CD 



rampanMa of thoee 
who hiJed lo do the ngbt thlog an 
maktng Ttew dollari frofn the eftte of 
thci. 
tfo pCTpecraled by ownen ol maelen Thnragh the efforu of indtridulB 
andaongcnprT«ht*^n»tvtMB0Hi aad or^ittMkna «ho taa«e tad the tn- 
BMgwnten who mainly made their doatry'i ootcry sgiiut the tordid 



way (If not much of a Hvtng) tl 



» RAB prwtkca of the paat, a 






dentCEO FrmncH Prattn to the Mq' 

Z. I9ee, aaue. wtwn. calling tftaitm to 
the induatr/a cfaarttaUe endesmn. 



rer. ttenlayet 
an] ftirthff falDkne to otfav marketa. 

».». v.»»->-.» Yea. iRBty ■rT'"'*'* to l^iL ttai^ eontlntie to benefit from Icgeadsry 

Rbjthn A Blaaa raonlly qaMtloublt. eontnctiul R«B and bluet eatalofe. many of 

FovDdabon-t mlatfoo to help R4fi oU^bam. (Mm. ttwngh thefc-om wUeb fly oder the bMoen <tf raa^v 

intataiced.«|«teB7thrn«hlB IgDonoea toe|Xtek.«-em^itn|.- naMcawn^ ^a-TV ^rfthetag 

- - ' aeevptad fwltry f •» m m — ' ' *-—"►-*-* 



lVoI- 



vadA«icrthonR 



the wQftfe MeDltoa U 



and Billy J Knmer. "Sure, 
re a lawyer, if you have the 
to thaL and track evervthtng 
.eWorld How many older 



top by lar^w l«bete can have a benefi- 
rul effert And, provided that owner- 
■ihip of maMer nghu » not in d«pute. It 
L* 3 relairveiv *ir*tfrhtforw»rd matter 



whoni »ry maguine pub)i.-*her» gnring 
wi-a> free CD* «"ilh their puWwitJon.* 
Th«>ma> BoneUi. CEO of Lof Ange- 
U^h*MHl Celebniv Liconjiing. art* on 
hehalf of ariwtf or their enUles, indud- 
■ngihr Everi> Brothers Kr»nk>eAval- 
.fv DpI Shanmin. Oene Pitnev and Ray 






h bought the Roulette n 



Japanese independei 
lumbia bought the « 
Reeont* catalog tn earl 



p, "One probtem • 



very mrtjculous." he nyf "I met • 
r«al t-anasern and i-dotter« in my 

Armitirong add* it would be fo 
to asftume that all labels had the t 
attituden toward mte^ational k 
Many were aclivety engaged m i 
ple» ar>d widespread ii 
censing 'If vou look a 
the American Deera li 
nending thing* all aroun 



ll hapi^nf a lot toothers t.i 
I ver\ iminrtanl iwpect of tl 

^ml underMand il ^uite f 



T future te^notogie* *urh 



traftedfrom tJ 



Mvs Lichtenntein "Some label* had 
provision for 25-year contractu with 
lhe*e artmA. and after that they could 
nop payment." 



The (io««ion of licenmng ir 



A of pnontie* when 



partiesi lo change thvir atui 
artwt royalties Effort* t 



-Som 



nEMIv 



*Savc 



e company « nirategK mar*elin 
e RouleUe purrhaw 



y didn't pay 
royalties lo artuitit For example. Dex- 

eaiboard about uur Savoy rewoies and 
«-Ttiu u> us afJting that «he be paid the 

Hafhoume say* NipfMio Columbia » 
now paving Gordon « widww the re«TUi- 
Hte royalUe* for «ale^ m Japan 

Vet MJCh mdves often bnng loo little 



intraducing an intematxtnal dimen* ton 



the plaintiff and defenriani clawni 

decadecago 

Sometime* court* provide clear u 



I had the nghi* to expk>il t- 



their ongmaJ deals 



elicTTvnng Sfill 000 in damagefi. as > 



352 



fn£ tHbRNY ISSUES OF INTERNAnONAL ROYALTIES 



ihr nuat«rs r BillboArd. F«b 2h. IVH ) 
When there •> even the vlightex 

<)ue»uon over the oxi-nenhip of ■ cmm 

bog. It nm otuae problem* 
Almost everv month at ieiti't one 

fre.h ls«*uit appear- <n the Hifth 

Court h*re. wUh one jiartv claimmft 

that tie nfthtf to oilalog maaters hive 

beeninfnngvri 
Uno of the most bitter riinput«a ha^ 

nffhtf to thi- CheiLK caUlofi ReiMue* 
-IKi-ulM ( 'hari> Recont> vbim^ rt ha.- 
nunewluaiieridhu. i. 



dr\ I9UU. alletpng infnngemeni of cor> 
nghi on Hi recorrtings mctudmir wotIf 
hv Chuck Berr. . Snnny Bov WiUuimion, 
Muddy Waters, and Buddy Guy liKei 
peeled that the tnate will uke plac« nejn 
ApnL There o also tndemarli acUon rr 
g&rding the Chesa nwne and logo in 
France and the Benelux 
The increue m nich oaei does not 



repreaenied 8 H of uniU ind 19* of 

The BPI does not keep delaiU of 
«-hiU proportion of these lain are RA B 
reetauek. but s bnef survey o( tities in 
Lorwion duc^Mnl and rtearence Mores 
(Ugge^l^ Ihal 401 -SOI of budget 
repenotrv on aale i* t\ R& B and }miz 



■ Johnjton. Muddv 
Lead Bellv. and John Lee Hooker 

In min^i inntjincea. the appropnaie 
nghlA arv taud Ut the nght«-hoMers. aJ 
thougn \3tnic\ undeTmintv a gnat deal 

amnuni of "gr»>'' prrxtuct m the miuiirt 

EstimateK of the annual lutu«> lu iht' 
rectirri tndu»Lr> thriMJgh ratjtlug pirBC\ 
vary from a consefN-Un-e SlOO mUIwn u> 
%SM million, and a significant prupor- 



MCA. for exampte, says it sold some 
a.OOO copies m the U K of a Howim 
Wolf compilaUon. "The Genuine Arti- 
cle." which sold for more than 12 
pounds ($1920) 

Many of Ihe disputes in the R4B 
budget market stem from the pioneer- 
ing spmi of the U S record industr.' 
before major Ubels lightened their 



The CD boom of the '80s and '90i 
produced huge demand for catalog ma- 
terial, eapecially among older buyers 
The market is essentially split mto two 
distinct parta. Fir^L there are the high- 
pnc«d. well-presented LitJes that conw 

are aimed at collectors, and retail for 
CO-tSO By contrast the budget mar- 
ket IS charactented by "cheap and 
cheerful packaging." and single discs 
reuil for U-%S and four-CD sets at 
about S14.50 

Ace's Armstrong says that the com- 
pany has some 900 tAJes, most of them 
selling St s wholesale pnce of 7 20 
pounds tSl I 60). making ihem a full- 
pnce product The mow we can expect 



and their heirs may be losing signifi 



It year waa worth 90 9 million pounds 
14&miUion)or 11 If of the market 
Jue. and 18-9% of U K- trade deliver 
1 at 33 5 million unii«. sccording t^ 
British Phonographic Industry In 

>ubled. In 199U. the budget market 



comptlaiMiu aa proof of cfaam of titie. 
To unsuspecting inlemational open- 
ion, all appears to be in ortler TV tax 
kxiphote wv doMd by 1986. but not be- 
fore the same lOO-plus maatery had 
been licensed r^verxl thousand times 

When CD* repopularmd the rrper- 
inxTV many of the nghu lo manufac- 

licenaes. although the »heer number of 



when ,rau consder the poaaibdit^ of it 
being available online ' Langford'a ei 
penenee with attempting to identils 
rrroniingM ted her i>i hHieve that iherf 
in no mibrtituie for getting tj 



-Wev, 



Thu. 






sRAB 






. 'fi06. ( 



.t first Bight I 



pu-ai^ material and whai la legitimate. 
henc¥ the expreasiofi "gray " There la a 
huge market in licenses for comptla 
lions, in whMrh the unsuapeetiag as well 
as the unscrupukMs can end up buying 
something tea than the genuine oitKle 
Master suppliers provide licenses 
for veraions of aongi that they daim 
•dbyoaeormon 
I Tlie DAT that b- 



•ound-ahkea to round out the number of 
Bongs to produce a package thai can be 
sold on the open marliet Dtitributorv 



nth cnnfidence 

Ken Nagai, A4 R dw*«or of Tokvo- 
Mued -(lecuiltv Ubel JIMCO Keconl>. 
i hich rvi>:<ue> manv jaxz. R& B. ami 
ock titie» frum uutMile Japwi, wvc find- 

ime" I ha^e 10 go through five or six 
vopie. and it oin utke up lo nro yearK 
Vith oW master renmting. sometimes 
e nghl* 



Says Andreaa Heyn. staff Lawyer at 

"Great importance is attached to sut 
ing the precise titles to be sold as well 
as sn exclusion snd indemnification 
dauae We frequently turn down cffera 
becauae the legal sduaUon appears un- 
clear or only nonexrluuve ngtila are 
bemg offered — ths makes i 



The International FedertUon of 
Phonogram and Videogrmm Producers 
ilFPI) prevwualy mdicaudthat it had 
a commiiment to atiaeking catalog 
piracy However, since the beginning of 



that the different <. 
tampered original, 
pitch changed Oft' 



ID the material 

^The arUnti' were able ti. irieniifv i 
reconlingy tmmediaiek . .«ui-h a.* par 



aMt-time 



worae after the Reagan admtmstniion 
created s tax kiophole for "cultural in- 
vestments' in the early 'SOb This defi 
nition could include the acqutsitjon of a 
sound recording maato-. urespective of 
whether it was actually turned into a 
manufactured prtiduct Becauae of the 
tax advamagea, many artma sold their 
master rights lo shelter companaa and 
were able to realise significant sums 

Many of these companies changed 
hands rapidly, with each sale repre- 
senting a 10% tax break. The paper- 
wnr^ created si tbe time of sale is now 
used to dupe foreign companiea that 
WUh lo enter the budget market While 
the DAT the Ixcnaee receives may cor- 
relate to the tndi liatsig on the paper- 



ofnoai in that area. 

MargD LangfortL who previously un- 
dertook catalog ptrary worV at IFPl. is 
now s partner with the London law 
firm Green David Cornray A Co 

"No one apfaeoated the value of this 
repertoire until CDs came along [ 
don't think it's going to gel any less 
popular m the future, so it needs pro- 
tecting This IS eapecuilly important 



.hentheTrwle-Rebteillit 
(V Uke^effert ih.>«.-ai 
ipvnghi HxwH^rr. mnik 
I the (KihlH- •kmain. U-lim 



Like expert gnlfer- 



njUCOOHMi 
An added problem is that somf 
recordings ore efTectivety m the public 
domain in some parts of Europe Ger- 
many, for example. <mly started pro- 
tecting non-German recordings after 
1972. and mtematnnal recordings be- 
fore that date are technically m the 
public domain and free of performera 
copyrights if sold there 

their way mto other European Union 
stales snd to most parts of the world 
where there ■ a market for them 

SequeTs Fiaher saya that is Ihe mam 
factor affecting hia company's busi- 
neas "It's reallv annoying when you 
pay for a licero* and put out a record, 
and someone else has got it for free " 

In Japan, master rights protection 
does not apply ui iwund recordings is- 
sued before 191)8. and many small com- 
panies release lo» priced CDs of 
Imainly non-Japane»ei maienal re- 
ronled before Ihal year and only have 
lo pay songwTiting incomes 



The dawTMib-i> thai TUI)'<ik«>.ii»< 
aaoni cituen» ..I miinli^r Mai.-, ji.^ 
recourw if <;ATT m^'mU-r .l-lr> .b 
n..l iNu^ hfguaatam that i-n^iin-^ }>r.- 

«*hi'n:' |arar\ rrmain* a (inJilrm. xal 

ivmain iinimnn-ted until well mli< tin 

In thv kmg term. Mtv <tn\\ fval "lii. 
Hun t,t catakjg pinicv aiKivateil Ik tn 
>Mler» i> lur the m^jiv UU-U l^i itHcwl 
their iiwn calalug^ l>v h4\ing a lutl-liiii.- 
antj-piracv iifTmal aht> can wirk »iiii 
libr*n«n» and eMCum'e> in the cam|M 
n> to apprehend pirate* At preaeni 
hoM-ever. the funding for IFPl ■ cau 
log piracy prngram appesnt to huM- 

Piracy not»ithatandin(. some iMtuf~ 
uy obaerven say rt is eatiy lo cnticiu- 
early record labeb for behavior '.hai 
aeema reprehenaible by todayV aUn- 
darrti Yet ihene people ««fe not wort - 
ing in twdaya orrlered environment. 
where the long-term survival of the m- 
duairy w taken for granted. They wen- 
working tn a very high-nak buainerv 
that could fold St any moment For Ih 
artiau. luo. It was often more iem()ting 
to live for the day ami forgo royahien in 
favor of a lump-sum payment 

As Ace's Amstrong says. ~lf you 

MtxikI yuu rather have ' C«»h when the 
man ofTereil it In yt>u or the promu*- ••! 



imgtOK DC SUve MrClurr w TiA^ik 
and Waljyatig S/Mhr ,» Humbury 



WORK GROUP'S MN8 AT 'NEXT LEVEL 

Honltnu^fToni fjofft W) 



dR4B 



of booliegs and rerecordings 

This paperwork can also be used as 
the baou for auppoaedly legtumaie titie 
documenu that accompany the DAT 

sheltera, the new compan«s were able 
to grant licenses to exploit a certain 
number of tracks m a certain onler for 
a given temtor^. Thousands of auch 
nonexclusive bcenoes were granted, of 
ten uaing the same tracks for the aaine 
territory, but in a different onler. The 
licenses issued by the shelter compa- 
nies expressly forbade altering the 
running order and also prevented the 

from the compdatioo 

In reality, these restrictions are fre- 
i)uently ignored, snd many licensing 
companiea use documents from these 



t. -I've I 
'o 
tiaUy be serviced lo R& B n 
followed by d 
Work plans to service fi 
remixes to sppropriste stations 
AyerafT sdmits that gaming RAB air- 
play will be the label's biggest chal- 
lenge, but IS confident the group will 
ftndshome 

Mainstream RAB programraera 
aren't automatically dismiaaing "I've 
Got A LitUe Something For You' be- 
cause of lU U K approach to RAB 
Say« WQUE New Orleans PD Gerod 
Stevens. Their profile doean't neces- 
sarily have lo meet your sound. If lis- 
teners like them, well play it* 

WEDR Miami PD James Thomas 
says MN8 will not be automaucally 
counted out just becauae it is U.K 
based *'ll won't beany more difflcult 
for them than kical amsts. if the song B 
there- 

However. reUilera m black commu- 
nities say the group may have a ddBcult 
road. Chicago independent retailer 
George Daniels, owner of George's Mu- 
sic Room, ates poor record sales of 
popular R4B>>p act All-4-0r« at ha 
More aa an example of M hUT) challenge 
alwsd. "i thought Uwtr song '1 Swear' 



t Badd." he says 'Both groups did 



had rough going here Well pull tn s 
pop-soundnig set every once in s while, 
but (MN8] going the rema route IS the 
best way for them to do well with my 



ittitrj Morae. buyer/ 
Lanaing, Mich -booed. l&«u>re Where 
Hoiae Reconls has s broader perapec- 
tive and says domestic Ri B fans don't 
expect U.K acU lo sound like US 
faaKdMta. 

Says Morse. "lUK I bands have 
more polyrhythm and overall continen- 
tal flavor, although Lhia kind of group 
will probably appeal more lo younger 

poaedlomen- 

Despite the challenge. Dee Tails re 
mains optimistic MN8 will appeal to 
US. record buyers He deacnhe^ the 
group's music as "the funk emanaLng 
out of Uy Rust to lUununaie the blind 



"Origuially. we stacked our harmorues 

sayv 'But once we got in and the label 
warned a softer RA8 sound. *v dxtnt 
overlay a whole kit of paru ~ 
To The Next Level.' releaaed on Isi 



r Reconla m England, debutnl 
al No 13 on the UK albums chart tln' 
week ending May 20 The fina Mnglt- 
Tve Gut A LitUe Something For \ 141.' 
peakedon the U.K. singtea chart al No 
2 

MN8 developed considerable U K 
awareness as opening act for Janet 
Jackson dunng the European leg of her 
concert tour m April. The group haa a 
kA of energy and moves really well on 
stage.' says AyerofT. who anticipalea a 
large female following in the \AiS- 
year-old demographK 

Becauae the group is so Rucceuful 
outaide the US.. MN8 haa been conUn- 
uoualy lounng and will not have unw 
for promotiunal datck 

Although Work IS releasing -I'vi- 
Gut A Utile Something For You" aa it/- 
firbt U S single, aubsequent single> 
won't necesaanly fultow the U.K. aflec 

In addition to remising the firai 



It than the foreign venion. but n noi 
overiy sexy 

"We're also gong with an album cm 
er that offers record buyera a harder 



auaoMo AM*. 10 itn 



353 



Artists & Music 



Sony, Rhino Plan Royalty 
Reforms For Older Artists 



I BV BILL HOLLAND 



9838 

roUNOATlON 



^ijlhtline" prograin 
>. to be wmi rlunnn 
lav have helpMt precipi 



all thone involved are idenufied. lu 
oit«ri. and fairiy comperuaieH. " Sonv 
Mu»c'm AnUwny wnMe in Ihe leUer rial- 




Denny Corde" 
Producer, A&.i 
Luminary, Dies 



HmOnTMHH- W»m»f/R«)n5» •«»' FMt' Hdl c*ofer (aHu i«nn fllA* 
chairman Jay Bermar Wfl and RIAA CHM>cMni/COO Hiary Aosen ai a VIP 
nc«0Kon al tfie u 5 Capitol BuMmg Wl »p«nt me Oay on Capitot HiO mMt«>g 

flosan war* hat ho»t» kK iha 



a isiua ol p«<tormanc« n0nis Barman ai 



• VP Michele 
;hony to Tom 
Draper, chairman of (he Rhvlhm & 
Blue^ F..un.lauon. ..uUminR a plan to 
entenrt the reforms lo more than fiO 
HA li performerx whoae work onginnl- 
ly appeared on luch Ubelb a» Colum- 
buL. £pir. OKeh. BruniiwKk. ami Vo- 

The reft>rm» include an updaled 
ruyalty fee of lOT of full reuil pnce 
for the former recording »rti>l.^ ur 



Whelan Song Does Unusual 'Dance' To Top 

Irish Indie Son Records Seeks Alternate Promo Routes 



li 



I BY KEN STEWART 



DUBLIN— The perseverance o 
Iniih indie Son Records helped t 
bring Bill Whelan'9 compositio 
"Biverdance" to chart succesK in th 



recou|tt<l mvaltv balance!' 

The pohciu*. which will 

feci "an soon a>. pouible." 

til Sonv sMarvElknCaui 



Robert Emmer. eiecutivc VP of 
Rhino Record-. «-hich own> the rata 
\ctfs of label> such a^ Roulette, and af- 
niiated labeU >uch a^ Gee. t^ine. ami 



Roulette and amiuied-L 



ri2. EMI initiated t 



n the UK top 40 sinjiles chart for 
week of Feb 25. it peaked at Nu 
ree weeks earlier 
■s UK presence was bowled by 



with a robuft promouonal campaign 
centered on the incluaion of "River- 
danre" in the Royal Variety Show hux 
November, after which it charted in 

"Our wllole strategy was based on 
that show." Havs the label's general 
manager Dave Pennefather What 
tnL-i most aatisfymg 

Dublin, prvmoting 



^ngs 



RTE TeleviHon's 1994 Eurovision 
Sung Contest, where it vnt» onginallv 
performed by the RTE Concert Or- 
chextrv. the choral group Anuna. and 
a team of dancers led by the Innh 
American duo Michael Flatlev ami 
.lean BuUer. 

The iimgle. which Son aa>it ha.H m>IiI 
asu.uni) units so far. was followeil by a 
videu single. "Riverdanc* For Kwan- 
ila " with proceeds of its 80.0(W 



^ 



ords and ('2 manager Paul McOuin 
neM. Clannid manager DaMd ka- 
vanagh. and Bartuini GaUvan. 



e Feb. 6 for 27 )» 
■ rdance-The I 
V MovaDoherty. 



dom- before " 
Uo siiught a vanely uf 
p cum|>u>ition "Siwrt- 



.- Ponnelathei -|t»a.<lh. 



.•ii the migration of the In 



Meluwa Elhcndge. ami the ChuiIrt- 

"Denny fnnWI wan the mwl hu- 
mane, undemlandiiig. wonderfully 

life. ' MVk Uland Recorrln prvxidt-nt 
John UartitB. who waii given hi> fir-i 
npportuntly in the muMC bu»tine>** by 

gtonal promoiMin for ConleH'N Sht-l- 
l*r label in the San Fnrnciw) area m 
the earlv Tlfc, "It didn't matter where 
yuu worked in tht- oimpanv. ht- al- 
ways had time for you I coukln'l havf 
had a beiirf fneml ui monlor ~ 

Uom in buemiB Aires and i i 

England, Conlell >Urt«l out i. , ux. 
managing trumpeter Baker I..r a 
brief period before joining t.hri^ 
Blackwell'K fleilgling Ixland RonmN 

aililmlU K ) impnnt. 




Suiannr ^l»rS«r> 



Cnnif 


kr« in H««k« u. j|i|Hi«nti^l lutMiiul 


AlUn Hardin i 




ilirvirtiiruf |ini4niiliiin:.riir Kbvor Unit 


VI' „l llvn»iii Mil 


niiaim' ml Mi>iii.'>. .l«Fl.4iin.:nl f:r 


Ktmnl.^ in .Ifi^-v Cilv. N J He «»>■ 


Nit.-h\illr. Hf «».- 


W.ni.TMii-«MP!ucv H.'«ji..cllK-fn- 




>«iMiii.i<lin.i|. 


luiiir..! ..mnr Cor Sum Miuic Veno- 


Willi hich KnvnL. 




u.,-l« ..I.I .S..1IV Mu«c Mf u™ 


Tvnuiiw Whilt iCuual'Tl l< mt 


nmiiMM. Wurr 


Miinir l.ipiMin >.- lunHnl iMtiimitl 


IMiinliHl itirvi'tiir uf AA K lor Knunl i 


In, III 1..., Ant.. 




Ki'tiinU in l.i>. Anrfl.>> Hf ««> »n 


Biedcnnsn I., .a. 


l.„,l„ II.T...-.I« ici Nto Vurk. Hr «•.. 


AltH n'lim.^nlituv.-inthirn.iiilepjirt 


n™ ..ffii- Ki-nor 


KMl 
Am> slMnlnn i.* n»m«l M^wnlirir- 


inont >ir H<iII>-w<mI b^^i- KATinL. 


.udl-i»r«onl..- 


nSTMUnON. Jim Kdlr c nuinMl Vl' 


I"""" .,."'''" |. , 


lur ..r M(f..< U'v Viiinn lt|.ninl> m !.•» 


.If miirhehnef.ii'llnil>i,iriliuliiin 


Ift-niTdi iiiu.i.cl J 


A.ii;.l.-- Sh.- «»« » rni'ljnci- vidp.. 


1 on. in !..» Anmlr. H- «». VV t.ir 


l.i..in.~-. nlTaiiv 



354 



Artists & Music 



SONY. RHINO PLAN ROYALTY REFORMS 



Ottjneo wrms the rtersMon ui 'iniuil 
mponae' »nt Hkb Uut pUm u encnrt 
the frtornv to i Iw^^r number of trtisti' 

V being Fviluaud ' 



Fla include! RAB and mer iHiSts in 1968 iruulung m flntt- 
« cud) u the Crowt. the time lump-sum puvrnenu to mtny of the 
d Ronnie Hswlum.jas wtMlM and Uter exunled (he rrfonn U) 



> beiuif 



I. Robi 



Joe Tunvr. ThMmpun Jack Dupne. Bill 
Broonzv. and Memphis Minnv 

RAB anG>ti> frura the -SO* >nd eOt. on 
Eptc dnd OKtrh include Roy Hamilton. 
Major Lance. Big Maytaelte the Ravens. 
ixT^imin Jay Hawkma. Ljttie Joe A the 
Thnllert. and the Schoolboys 

A <|uick check of the nmur of the Rhn 



grtaU Count Ba&ie, Joe WtDiaim. ^nh 
Vauffhan. and pop MUrt like Jen South- 
ern and J immne Rodger^ 

Some early-blueK ptoneers may have 

irveni music hmoruxM 

Old rrrording contracu often aaddled 
unrepretenied artiau, moat of them 
Afncan-Amencans. with nyalty nits 
aa kTw aa 3% of whotaiale or l%af retaJ 
pnre Still other artutaarrepied no-roy- 
alty -buyouta' of between S60 and S200 



, However, MCA haa not yet exlfnded 
tha»« refom to other RAB artxta who 
onre reconM for labeta auch aa Decca. 
Conl. PeKock. and Duke, wti^ MCA 



Atiantw was the finl lafaH bo iniuue EMI followed with bnurter reforma. 

the royiRy nforma in 198K foUomd by induding a 10% royalty U) all pre- iy72 

MCA >n 198V. EMI in 1992. and De- annu in all genra aral the etammuwn 

norvthe Ntppon Columtxa Co m 1993 of unncouped royalty bdajvcs 

Atlanuc initially ehminaled unrv- Denon/lhe Nippon Columbia Co.. 

coupedbalanmfor3&ofltaaeminatfor- which owns the jazz- and RAB-nchcsl' 



■ri* ei«p««fa 

JUliM OF tm TIJ 



^M I I HaawY O & TK* B^ts 

(III Nuttin oumrn 

work ■"'!:?•■• 

does -EEh 



,. off 



GRAMMY 
NOMINEES 



■ITAL PlirOIHAICI 



le compsnie* expreai- 

^ about the changea 19 

PolyOrmm Holding Inc . which owrtt the 
Menury label and its a(TUiat£3 anrt the 
Verve cualoit and its prrdeceaaors In 
addition. PolvGram HoMing boufrht the 
MoUM-n caLakig M^erJ years ifj 

Enc KjTinfeld, COO for PoMiram 
Hoidintr Inc . aavs the rrforma requot 
ed by the RA B Foundatxm bcajd mem- 
ber* are "the wrung »-ay to go* to ao*v 
nf the underlytng concerns about aging 
RAB performers — that la. generating 
funds for medical needs 

Kronfekl aay« updating royalty rales 
and eliminating unncouped royalty baJ 
ancca ts *a Band-Aid af^niach ~ Raiher 
he supTxwta a concurrwii eff on by f oun- 
dation board members to eslabliah a 
eani()r«henBive medical-maurwice pro- 
fnm Cor older aftwa 

'I aipfMrt the efforts of board mem- 
fa0« Bonnie Ram and ( E H 1 M IMC [na- 
■dm/CCO) Jon rcfleU to find and pn>- 
vide a meani to allocate fundi to 
alleviate the luffenng of previous 
rrcording artisu ' uya Knnfeld. "and 



ny rased royafty rat 
ncouped balancea. r 
on labels now owi 



the remaining major« a 
mer reronting antHii urn 
royalty provision>. »wv 

BMG 0%-n- the RCA 



the-boarri reforms. Executitea therv rt 



rrf orms to meet the EMI and Rhmou 



li Conte AlUntK a 



tionahipa wtth our ariMUt— past and pn 

Artoihcr label yei to make any n 
tbntia ■ Tantaay, wtuch tmnm the ab 
k«af the Jazz fBnif Pnatigc Riverad 



enough difference to help th 
Furthermore. Kronfeld a 

alty refoi 



«edoe9 



artiata "That'i distasteful to me " he 
SQTS. wiule adding that 'pnAably mod c/ 
thoae affened an African- Amencara-' 

He says he had determined It wouU 
take at least thrre years to change the 
aceounung procedures, during which 
Qme a kx of ailmg veteran artats would 
not see any pouible benefits " 

Settlor ufruUvjLA^ BMC. another of 



Stai-VoH. 

Some cntvx of the rmmlty reforms ai 
pnvatHy thai the hike to s 10% roysh 
rouU be offset by unpuUiaaed. curren 
industry -contract stipuiationa. such a» 
2OT- packaging charge or a 2S* n*w mi 
(ha ( analog to (bgttal ) charge. 

Unul the Sony and Rhino develof 
ments. slow pmgreas on the royalty n 
form front has frustrated Kome R4 
Foundation board members e&|jecali 
in light of the recorrl of generous Amu 
oal support by the industry m other a; 

write the foundation's annual Pionet 
Awards cerrmony 

Industry gifls and donatMms haveti 
taled more than SI 3i> million sinc« th 
RAB Foundstjons inception in 1988 

The fcundsuon s aixih-annuaJ award 
preaematjon wUI be hekJ March 2 at th 
Hollywind Palladium in Lea Angeles i 
a pan of Grammy Week. 



BMG CLASSICS GETS INTERNET RETAIL SITE 

ItoiUiHtud from pagt ii 



s.'HowbetlertodoyourahoppBigr Vocal Area. Mail A 



The classical radio s 

fQled thai role have twen kMing audvnce 

and changmg formal, he adds 

The coat of cmung the database is 

pocenoaL Bourne, s musnan sr^ a com- 
puter profeaaional who began aasem- 
hling Claaaia World barvty five months 



d Bulletin Boan! 



It weU below 1100.000 'ltiunbebe\- 



month Among their desUnattonn. a* of 
mid-February 17 milhon domains 
more than double the 700.000 pariied m 
cybenpaoe in September when Boun^ 
pro^rt. The Um ci 



fWnfadit)' has aUowed 
pletely eclipse serMces like Com- 
puServe and America On-Lne. he addii 
Oaaaics World (reached at wwtidas- 
ncatanuuami conarta of set-en dmeto- 
nca; Ariot Area. Composer Area, Con- 
cert Halt. Bernoer s Guide. Opera/ 



d CD Store All feature CD-quat<V 
audiocips and reama of tno. m atkbuor 
Concert Hall has Quicktime videoa a 
performances. 

s uicluded 85 BMG per 



wty — Bourne was buy eicefptir^ ana 
from "Madame Butterfly " and 'Car 
men" the week before the launch o 
ClaasKS Worid 'Eyentually. there wj 
be sudioclips for every one ' Bourm 
boasU of ClaasKS World sound (fiaUy 
■ We got very clever about compres 

Reaching domain ca|acn>- ant a eon 
cem 'f don't think well e\-er get neai 
e says Looking for more ways U 



greater design promote BMG n 



and perhaps co-promoM 



355 

Mr. MOORHEAD. Professor Reichman. 

STATEMENT OF J.H. REICHMAN, PROFESSOR OF LAW, 
VANDERBILT UNIVERSITY 

Mr. Reichman. Thank you, Mr. Chairman. Thank you for 

Mr. MoORHEAD. Am I pronouncing your name 

Mr. Reichman. Reichman. 

Thank you. Thank you for the opportunity to appear again before 
your committee. 

Let me begin by emphasizing that with respect to duration, cur- 
rent U.S. copyright law compHes with all the international mini- 
mum standards, both those in the Berne Convention and those that 
issued from the all important TRIPS Agreement, which has not 
been mentioned here today. So if we move to a term of life-plus- 
70 years, that would exceed the mandated international standard. 

Now, I want to talk technically for a moment about the works 
made for hire problem because I agree with Bill Patry; it's much 
more complicated than appeared in this morning's testimony. There 
is no express minimum standard for works made for hire under the 
Berne Convention. But let me stress here, because I did not make 
this point strongly enough in my written statement, that article 12 
of the TRIPS Agreement does establish a basic minimum standard 
of 50 years for copyrightable works that are treated as corporate 
creations in the domestic laws of member States. Article 12, would 
include both computer programs and original compilations. 

Now, then, the TRIPS Agreement goes on to establish a mini- 
mum 50-year term for producers of sound recordings, but only 20 
years for television broadcasts. So, except for broadcasts, the trend 
clearly favors the minimum term of 50 years for most corporate 
productions, whether they are treated under copyright laws, as we 
do, or under neighboring rights law, related rights laws, that the 
Europeans use. So the United States already exceeds this mini- 
mum, the new, emerging standard of 50 years, by giving 75 years 
of protection to all works made for hire. 

Now what has the European directive done? First, it adopts a 
basic term of life-plus-70 years which Germany and France, to a 
lesser extent, had reached in a somewhat haphazard fashion. It 
does this to quickly integrate their national markets at lower 
transaction cost and with fewer trade restraints than would be the 
case if they were to respect acquired rights under a life-plus-70 for- 
mula in those countries while otherwise implementing a life-plus- 
50 term everywhere else. 

Then, in effect, the European Union meets the minimum term of 
50 years under TRIPS by giving it to all the related rights holders, 
including broadcast organizations, which it didn't need to do, film 
producers, sound recording producers, as well as the corporate cre- 
ators of computer programs. More interesting, the directive has 
also established an ambiguous, catch-all category for works attrib- 
uted to legal persons under the domestic copyright laws, and these 
works will obtain 70 years of protection. Now I really do not know 
how this provision will be applied. I hope the drafters had in mind 
works made for hire originating in the Netherlands, which is one 
of the few European countries that has a true works-made-for-hire 
principle. If they did, then those works from the Netherlands would 



356 

get 70 years, and under the MFN principle of TRIPS, that would 
help set a trend to harmonize toward our 75-year term, but I can't 
guarantee that is what will happen. 

Now, if we move unilaterally to 95 years for works made for hire, 
magnitude of the existing divergences will obviously increase. Even 
if we stay with 75 years for works made for hire, disharmony will 
prevail at the margins. Why? Well, on the one hand, the United 
States will give 75 years of protection to many productions that ob- 
tain only 50 in the European Union. On the other hand, the Euro- 
pean Union may continue to give some works by recognizable, iden- 
tifiable employee authors a life-plus-70 term over there, while we 
might treat those works as entitled to only 75 years of protection 
over here. Of course, this outcome depends on how courts actually 
apply this new 70-year term for legal persons. 

All this leads us to the rule of the shorter term, which is allowed 
by the Berne Convention and mandated by the EC directive. Euro- 
pean countries must apply the rule of shorter term. Now, to the ex- 
tent that some employee works obtain only 75 years in the United 
States, they might be cut back over there under the rule of the 
shorter term to 75 or 50 years, as the case may be. As I said, I 
hope these cases will diminish. I hope that more and more em- 
ployee works originating on both sides will simply end up with 70 
years, of protection over there, but I can't guarantee it. I can guar- 
antee that U.S. corporate producers of computer programs, sound 
recordings, films, and television broadcasts should expect to be cut 
back to 50 years under the EC directive as a matter of course. 

The proper response to this is for the United States to adopt a 
version of the rule of the shorter term. This would enable the Unit- 
ed States to apply reciprocity in these and other cases where U.S. 
law exceeded the minimum standard, but the law of the foreign 
creator's state gave less than we did. 

My written statement contains a word of caution in this regard. 
Some time in the future we may hear that the shorter-term rule, 
under the EC directive, conflicts with the MFN principle of the 
TRIPS Agreement. There are now at least two commentators who 
take this position. I do not necessarily share this view but it is 
open to some doubt in the long run. In the meanwhile, as long as 
Europe has such a rule and uses it, we should have one and use 
it too. 

All this suggests that we should encourage the Europeans to am- 
plify their new-found interest in the copyrightable works of legal 
entities. We should press them, to give all legal persons at least 70 
years, if not 75 years of protection, whether these productions hap- 
pen to fall under copyrights or under their neighboring rights laws. 

Having said this, however I simply do not see how a 95-year 
term for U.S. corporate creations furthers the cause of harmoni- 
zation, and I do agree with those critics who find that 95 years is 
excessive on the merits. A 95-year incentive is not needed to stimu- 
late investment in the cultural industries, and its social costs for 
research and educational users alone would greatly exceed any 
benefits to society. 

In contrast, I do agree in principle with Bill Patry. I believe that 
a much stronger case can be made for prolonging the basic term 
of protection afforded true authors and artists to life-plus-70 years. 



357 

Why? It should enable these authors and artists, but not corporate 
entities, to use income streams to help their longer-lived progeny. 
In Nashville, we see many cases, like those we heard about this 
morning, in which the children of successful country music writers 
literally depend on the royalties from evergreen musical works. It 
seems unfair that persons unconnected with the creation of these 
works can profit from them, while the author's longer-lived prog- 
eny, direct progeny, get nothing. 

Ironically, I believe that the case for life-plus-70 is much stronger 
in the United States than in the European Union. For all their 
lofty talk about authors' rights, the real beneficiaries of life-plus- 
70 over there will almost always be publishers as assignees of copy- 
rights and not authors and artists. All the literature agrees on this 
point. 

Over here, instead, Congress has already enacted the principle of 
termination of transfers in section 203 of the copyright law, and 
that principle can insure that authors and their heirs actually ob- 
tain the benefits of extended protection. However, the termination 
right is imperfectly implemented in the statute as it stands, and 
the principle has further suffered at the hands of the courts, as in 
the Mills Music case for example. 

So, I believe Congress should not lengthen the basic term to life- 
plus-70 without closing these loopholes, including the big one 
through which producers of derivative works now escape. True, the 
derivative work holder should not be subject to termination, I fully 
agree, with that because the derivative work holder invests a lot 
to make the film or the adaptation and he or she pays the author 
once for the privilege. But the derivative work holder should not 
be exempt from the principle of periodic renegotiation in order to 
take into account changing circumstances and the demands of eq- 
uity. 

I call to your attention that in the restoration of foreign copy- 
rights provisions, which this Congress just enacted, there is a pro- 
vision looking to renegotiation for equitable compensation of exist- 
ing derivative works. I believe that sets a good precedent for what 
we're talking about here. 

My remarks so far should help to demonstrate that copyright 
laws today are not about natural rights, as the Europeans like to 
think, nor are they strictly about incentives to create, as we like 
to pretend, either. Copyright laws are really about cultural policy, 
and it is our policy in the United States to give less than natural 
rights thinking would have us give, which is perpetual protection 
and quite a bit more than pure incentives theory would justify. 
Why do we do this? We do this because we all benefit culturally 
from the contributions of artists and authors, and, also, because we 
are lucky enough at the moment to benefit from the positive terms 
of trade our cultural and technical products enjoy in the inter- 
national market place. 

But let us not exaggerate or fool ourselves. Talents abound in the 
world at large. There will be other fashion trends and innovation 
cycles. There will be new musical groups like the Beatles and fine 
computer programs designed in Italy, Japan or Malaysia that will 
adversely affect our balance of trade under the rule of national 
treatment. If we are not careful, if we get too far ahead of the 



358 

international minimum standards, then our own cultural and tech- 
nical industries will become less competitive over time vis-a-vis 
firms in third countries who just stick to those lower minimum 
standards of the Berne Convention and the TRIPS Agreement. 

Thank you very much, and I'm happy to take your questions. 

[The prepared statement of Mr. Reichman follows:] 



359 

Prepared Statement of J.H. Reichman, Professor of Law, Vanderbilt 

University 

Introduction 



The following remarks attempt to evaluate the pending 
proposal to extend the term of United States Copyright 
protection' in the light of this %/riter's larger concerns about 
the future evolution of intellectual property rights in an 
Integrated world market.^ My recent studies show that the 
conditions governing creativity and Innovation at the end of the 
twentieth centviry differ significantly from those that gave rise 
to the Paris and Berne Conventions in the nineteenth century.' 
These changed conditions require legislative attention to the 
limits of the classical patent and copyright paradigms and to the 
need for new and more limited forms of protection dealing with 



' See H.R. 989, 104th Congress, 1st session, Feb. 16, 
1995 [hereinafter H.R. 989]. 

* Seg generally J.H. Reichman, Universa l Minimvun 
Standards of Intellectual Property Protection Under the TRIPS 
Component of the WTO Agreement . 29 International Lawyer 345 (1995) 
[hereinafter, Universa l Minimum Standards !; see also J.H. 
Reichman, Beyond the Historical Lines of Demarcation; 
Competition Law. Intellectual Propertv Rights, and I nternational 
Trade After the GATT^s Uruguay Round . 20 Brooklyn J. Int'l L. 75 
(1993) [hereinafter. Competition Law. Intellectual Propertv and 
Trade]. 

' See Paris Convention for the Protection of Industrial 
Property, Mar. 20, 1883, as last revised at Stockholm, July 14, 
1967, 21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter Paris 
Convention] ; Berne Convention for the Protection of Literary and 
Artistic Works, Sept. 9, 1886, as last revised at Paris, July 24, 
1971, 828 U.N.T.S. 221 [hereinafter Berne Convention]. 



360 



noncopyrlgh table, subpatentable forms of innovation/ At the 
sauna time, legitimate concerns about the proper degree of 
incentives for new technologies and about the proper means of 
regulating new modalities of diffusion tend to obscure the 
enduring problems and tribulations of this country's traditional 
artists and creators, whose livelihood and ability to care for 
their families literally depends on the cultural policies 
embodied primarily in our domestic copyright law.^ Balancing 
both sets of concerns in the long-term public interest of the 
United States will not be em easy task under the best of 
circumstances. My goal here, as an academic advisor, is to try 
to shed some neutral light on these issues without engaging in 
the polemical debates of those whose immediate interests are at 
stake. 

To this end, my statement first establishes the extent to 
which current U.S. copyright law substantially complies with the 
elevated international minimum standards that issued from the 



* See generally J.H. Reichman, Legal Hybrids Between the 
Patent and Copyright Paradioms . 94 Columbia L. Rbv. 2432 (1994) 
[hereinafter. Legal Hybrids ! ■ J.H. Reichman, Charting the 

Collapse of the Patent-Convright Dichotomv; PrgmJg?? t<?V a 

Restructured International Intellectual Property System. 13 
Cardozo Asts & Entertainment L. J. 475 (1975) [hereinafter. Collapse 
of the Patent-Cop vriqht Dichotomy 1 ; see also Pamela Samuelson, 
Randall Davis, Mitchell D. Kapor, & J.H. Reichman, A Manifesto 
Concerning the Le gal Protection of Computer Programs. 94 Colombia 
L. R. 2308 (1994) [hereinafter Samuelson et al . . Manif esto l . 

^ See, e.g., H.R. Rep. No. 1476, 94th Cong., 2d Sess. 134 
(1976) (stressing that a term of copyright protection lasting for 
an author's life plus fifty years was justified, in peurt, because 
the term \inder the 1909 Act was too short "to insure an author 
and his dependents the fair economic benefits from his works") . 



361 



latest round of multilateral trade negotiations.' It then 
examines the pending proposal to emulate the Council of the 
European Communities' Directive on harmonizing the term of 
copyright and certain related rights.' This analysis focuses on 
the drive for uniformity of copyright lavs and on efforts to 
improve the condition of authors and artists in general. 

The statement find that proposals to extend the term of 
protection under U.S. law cannot be justified in terms of a drive 
for uniformity as such, nor do they appear socially desirable in 
so far as the protection of works made for hire and corporate 
authors in general are concerned. However, a better case can be 
made for extending the proprietary rights of traditional artists 
and authors on the grounds of cultural policy, provided that 
certain conditions and safeguards are observed. Among the most 



* See Final Act Embodying the Results of the Uruguay 
Round of Multilateral Trade Negotiations, done at Marrakesh, 
Morocco, April 15, 1994 [hereinafter Final Act], reprinted in The 
Results of the Urogoay Roond of Multilateral Trade Negotiations — The 
Legal Texts 2-3 (GATT Secretariat ed., 1994) [hereinafter Results of 
THE Uruguay Round]; Marrakesh Agreement Establishing the World 
Trade Organization [hereinafter WTO Agreement], Armex IC: 
Agreement on Trade Related Aspects of Intellectual Property 
Rights, Apr. 15, 1994 [hereinafter TRIPS Agreement], reprinted in 
Results of the Uruguay Round, supra . at 6-19, 365-403. For 
congressional approval, see Uruguay Round Agreements Act, Pub. L. 
No. 103-465 [H.R. 5110], Dec. 8, 1994 [hereinafter URAA] , SS 101- 
103 (authorizing President to accept Uruguay Round Agreements and 
Implement WTO Agreement, supra . art. VIII; but denying treaty 
status and domestic legal effect to Uruguay Round Agreements as 
such, and excluding private actions under those Agreements) . 

• S&S. Council Directive 93/98/EEC of 29 October 1993, 
harmonizing the terms of protection of copyright emd certain 
related rights, [1993] O.J.L. 290/9, reprinted in Sweet & Maxwell's 
E.C. Intellectual Property Materials 29-35 (A. Boody & A. Horton eds., 
1994) [hereinafter E.C. Directive]. 



362 



important of these is the need to ensure that creators, and their 
heirs, rather than publishers, obtain real opportunities to 
benefit from any prolongation of the term of protection, lest the 
resulting social costs become an intolerable subsidy to cultural 
industries that should stand on their own feet. Moreover, both 
Congress and the courts must take steps to ensure that these and 
other measures designed to affect only the specialized market for 
literary and artistic works do not end, in practice, by 
disrupting competition on the general products market, especially 
on those segments devoted to computer programs and other 
electronic information tools.** 

A. Substantial Compliance with International Minimum Standards 
1. General Impact of the TRIPS Agreement 

The proposal to extend the basic term of copyright 
protection from fifty to seventy years after an author's death,'' 
as triggered by the European Communities' Directive to this 
effect,' is not mandated by the Agreement on Trade-Related 
Aspects of Intellectual Property Rights (TRIPS Agreement) , as 



** See qenerz^lly, J.H. Reichman, Electronic Information 

I331&1 The Outer Edge of World Intellectual Property Law. 24 

I. I.e. 446 (1993) [hereinafter Electronic Information Tools! . 

^ SSS, H.R. 989, supra note 1. 

* See E.G. Directive, supra note 6, art. 1(1). 



363 



finalized in 1994.* This Agreement required all nembers of the 
World Trade Organization (WTO)'" to comply with the minimum terms 
of protection set out in the Berne Convention, as revised in 
1971, whether or not these countries formally adhere to that 
Convention." The Berne Convention establishes a basic term of 
life plus fifty years. "^ In addition, article 12 of the TRIPS 
Agreement imposed a minimum term of fifty years for copyrightable 
works treated as corporate creations in the domestic laws of 
member states."' The TRIPS Agreement further required WTO member 
states to protect computer programs and qualifying compilations 
for at least fifty years from publication;" to protect the 
reproduction rights of sound recording producers for at least 



' See TRIPS Agreement, supra note 5, arts. 9-14 

'" See WTO Agreement, supra note 5. 

" See TRIPS Agreement, supra note 5, art. 9(1) (not 
applicable to moral rights under Berne Convention, supra note 3, 
art. 6 bis); Universal Minimum Standards , supra note 2, at 366- 
67. 

"^ See Berne Convention, supra note 3, art. 7(1). 

"' See TRIPS Agreement, supra note 5, art. 12 (mandating 
minimum fifty year term whenever duration "is calculated on a 
basis other than the life of a natural person," but exempting 
photographs and works of applied art. 

" See TRIPS Agreement, supra note 5, arts. 10(1), (2), 12 
(applying life plus fifty term when the author is deemed to be a 
natural person and fifty year term from publication in all other 
cases, except that a fifty year term from creation applies if no 
publication occurs) . However, compilations not rising to the 
level of "intellectual creations" are exempted. See id. eurt. 
10(2); sfj. 17 U.S.C. SS 102(a), 103 (1988); Feist 
Publications. Inc. v. Rural Tel. Serv. Co. . Ill S. Ct. 1282 
(1995). 



364 



fifty years; to protect the rights of broadcasting organizations 
to fix, reproduce, transmit, and televise their broadcasts for at 
least twenty years; and to protect performers against 
unauthorized fixation of their unfixed performances on sound 
recordings (and of the reproduction of such fixations) for at 
least fifty years from the date of authorized fixation." 

United States copyright law, as amended in 1992, already 
protected computer programs for at least seventy-five years." 
Moreover, the United States does not relegate the producers of 
sound recordings and broadcasting organizations to neighboring 
rights regimes, as do most European Union countries." For this 
and other reasons, this country does not adhere to the 
International Convention for the Protection of Performers, 
Producers of Phonogreuns, and Broadcasting Organizations (knovm as 
the Rome Convention).** Instead, the United States Copyright Act 



amended . 



See TRIPS Agreement, supra note 5, aurt. 14. 

See 17 U.S.C. SS 101, 102(a), 201, 302(a), (c) , 304, as 



" See , e.g.. World Intellectual Property Organization, Goidi to 
THE ROME Convention and to the Phonograms convention 7-13 (1981) 
[hereinafter Guide to the Rome Convention]; see also Paul E. Geller, 
International Copyright; An Introduction . 1 International Copyright 
LAW AND Practice, S3tc) (P.E. Geller, ed., 1995) [hereinafter, 
Geller, Introduction ! ; Stephen M. Stewart & Hamish Hamilton, 
Neighboring Rights , in International Copyright and Neighboring Rights 
185, 188-91, 194-220 (S.M. Stewart & H. Sandison, eds. 1989). 

" ■ See International Convention for the Protection of 
Performers, Producers of Phonograms, and Broadcasting 
Organizations, adopted at Rome, Italy, Oct. 26, 1961, 496 
U.N.T.S. 43 [hereinafter Rome Convention]. 



365 



of 1976 treated both sound recordings and radio or television 
broadcasts as protectlble works of authorship and afforded the 
relevant copyright owners seventy-five years of protection at 
least." In conformity with the TRIPS Agreement, Congress 
recently enacted legislation prohibiting "vinauthorlzed fixation 
and trafficking in sound recordings and music videos" for an 
indefinite period of time,'* and it also largely restored the 
rights of foreign (but not national) copyright owners, including 
producers of sound recordings, whose copyrights had been 
technically forfeited under specified conditions." 

In sum, the trend established in the TRIPS Agreement clearly 
favors a minimum term of fifty years for most corporate 
productions (except broadcasts) , whether they are governed by 
copyright or neighboring rights laws. The United States already 
exceeds this trend because its laws give seventy-five years of 
protection to all works made for hire. 

As regards other relevant requirements of the Berne 



" Sfifi 17 U.S.C. S 101, 102(a), 106, 114, 201, 302, 304 
(1988) . 

" See U.R.A.A., supra note 5, $512, codified at 17 U.S.C. 

SllOl; see also Melville B. Nimmer and Davio Nimmer, On Copyright, ch. 
8E ("Rights Against Bootlegging Musical Performances") 
(forthcoming 1995) [hereinafter M. & D. Nimmer]; Paul Goldstein, 

Copyright Principles, Law, and Practice, S (2nd ed., forthcoming 

1995) [hereinafter P. Goldstein] . 

" See TRIPS Agreement, supra note 5, arts 14(6), 70(2), 

(3); Berne Convention, supra note 3, art. 18; U.R.A.A., supra 
note 4, 5514, amending 17 U.S.C. §104 (a) (1988). See generally 
Universal Minimum Standards , supra note 2, at 366-72 (citing 
additional authorities) . 



366 



Convention, respect for which is generally mandated by the TRIPS 
Agreement™ (and thus subjected to the WTO's dispute-settlement 
machinery) ,^' current United States copyright law appears no less 
compliant than it was prior to our entering the WTO Agreement and 
substantially more compliant than in 1989, when this country 
first joined the Berne Union. ° For exeunple, the United States 
now protects architectural works. ° It does not avail itself of 
the right to limit the terms of protection afforded photographers 
and the producers of cinematographic works to twenty-five^ and 
fifty years, ^ respectively. Moreover, the treatment of applied 



" See supra note 11 and accompanying text. 

" See TRIPS Agreement, supra note 5, arts. 64, 68; WTO 
Agreement, supra note 5, Annex 2, Understanding on Rules and 
Procedures Governing the Settlements of Disputes [hereinafter 
Settlement of Disputes]; Universal Minimum Standards , supra note 
2, at 385-88 ("Uncertainties of the Dispute-Settlement Process"). 

^ See Berne Convention Implementation Act of 1988, Pub. 
L. No. 100-568, 102 Stat. 2853 (1988); David Nimmer, Nation. 
Duration. Violation. Harmonization; An International Copyright 
Proposal for the United States . 55 Law & Contemp. Probs. 211, 218- 
35 (1992) [hereinafter Nimmer, Duration ! . 

" See Berne Convention, supra note 3, art. 2(1); 17 
U.S.C. 101, 102(a)(8), as amended by Pub. L. 101-650, 104 Stat. 
5089, 5133 (199 ). 

** See Berne Convention, supra note 3, art. 7(4) (allowing 
twenty-five year term of protection for photographic works) . But 
see E.G. Directive, supra note 3, art. 6 (mandating life plus 
seventy years of protection for photographs amounting to an 
"author's own intellectual creation," notwithstanding Berne 
Convention) . 

^ See Berne Convention, supra note 3, art 7(2); Sam 
RicKETSON, The Berne Convention for the Protection of Literary and Artistic 
Works: 1886-1986, at 338 [hereinafter S. Ricketson] (noting that 
Berne countries may protect films either for the standard life 
plus fifty term or for fifty years from publication (or creation 



367 



art in domestic copyright law exceeds the twenty-five year 
minimum that the Berne Convention tolerates,^ while the criterion 
of separability used to distinguish copyrightable works of 
applied art from noncopyrightable industrial designs remains 
firmly entrenched in long-standing state practice.'' However, the 
United States design patent law may not fully comply with the 
TRIPS provisions concerning the protection of industrial designs 
as such." 



if no publication occurs)). The E.G. Directive, supra note 6, 
art. 2, affords a copyright to the authors of cinematographic or 
audiovisual works, (including the principal director, author of 
screenplay, author of dialogue, and composer of specially created 
music) , which expires seventy years after the death of the last 
of these designated persons to survive; and in eurt. 3, it also 
affords neighboring or related rights to the producers of films, 
and to broadcasting organizations, which last fifty years from 
publication, communication, or transmission to the public. 

" See Berne Convention, supra note 3, art. 7(4); TRIPS 
Agreement, supra note 5, art. 12 (allowing this exception); 17 
U.S.C. SlOl (definition of pictorial, graphic, or sculptural 
works) . See generally, J.H. Reichman, Design Protection and the 
New Technologies; The United States Experience in a 
Transnational Perspective . 19 U. Baltimore L. Rev. 6, 56-81 
(Symposium Issue on Industrial Design Law and Practice, 
1989/1990) ("Copyright Protection of Applied Art: The Retreat 
from Partial Cumulation") [hereinafter Designs and New 
Technologies 1. 

" See J.H. Reichman, Design Protection in Domestic and 
Foreign Copvright Law; From the Berne Revision in 1948 to the 
Copyright Act of 1976 . 1983 Dokb L.J. 1143, 1153-74, 1249-64 
[hereinafter Designs Before 1976 1. See also J.H. Reichman, 

Design Protection After the Copyright Act of 1976; A Comparative 

View of the Emerging Interim Models . 31 J. Copyright Society U.S.A. 
267, 360-65 (1984) [hereinafter Designs After 1976 1. 

" See TRIPS Agreement, supra note 5, art. 25 (1) 
(mandating the protection of "independently created industrial 
designs that are new or original"); Universal Minimum standards, 
supra note 2, at 375-77. 



368 



To be sure, U.S. compliance with the relevant minimum 
standards under the Berne Convention arguably remains Imperfect 
In some respects, notwithstanding recent Congressional action 
rendering the renewals of pre-1978 copyrights automatic^ and 
restoring foreign copyrights that had suffered technical 
forfeiture.^ For example, U.S. treatment of anonymous or 
pseudonymous works by foreign authors may still fall short of the 
Convention standard when such works are not published promptly 
upon creation." Certain pre-1978 works by foreign authors may 
still obtain less than life plus fifty years of protection if 
publication occurs too early in relation to the author's death. ^ 
Moreover, the degree of U.S. compliance with the moral rights 
provisions of the Convention, though improved since 1989, still 
falls short of the standards that state practice generally 
accepts . ^ 



^ See 17 U.S.C. S304, as amended by the Copyright Renewal 
Act of 1992, Pub. L. 102-307, 106 Stat. 264. 

^ See U.R.A.A. , supra note 5, S514, amending 17 U.S.C. 
S104(A) (1988); M. & D. Nimmer, supra note 18, ch. 9A 
("Copyrights Restored from the Public Domain") (forthcoming 
1995); P. Goldstein, supra note 18, S2.5.4.3 (2nd ed. 
forthcoming 1995) . 

" See Berne Convention, supra note 5, arts. 7(3), 15(3); 
17 U.S.C. 302(c) (1988); Nimmer, Duration , supra note 22, at 
224-25. 

" See Berne Convention, supra note 5, art 7(1); 17 
U.S.C. 304 ( as amended in 1992); Nimmer, Duration , supra note 
22, at 225-27. 

^ See Berne Convention, supra note 5, art. 6 bis ; 17 
U.S.C. 106A, as added by the Visual Artists Rights Act of 1990, 
Pub. L. 101-650, 140 Stat. 5128; S. RiCKETSON, supra note 25, at 



369 



Nevertheless, the proposals contained in H.R. 989 would only 
alleviate, without necessarily curing, the minor technical 
deficiencies noted above. As to moral rights, neither the Berne 
Convention nor state practice have established a norm governing 
the ultimate term of protection, although the basic principle 
does link the minimum term to the duration of the author's 
economic rights.^ In any event, while pressure for greater U.S. 
compliance with the moral rights provisions of the Berne 
Convention appears inevitable, there is nothing in either the 
TRIPS Agreement or the E.C. Directive that requires Congress to 
teJce precipitous action in this regard.^ 

A more relevant misfit between U.S. copyright law and that 
of other Berne Union countries stems from the greater reliance of 
the former on the work made for hire doctrine in general and on 
the principle of corporate authorship in particular.^ On the 



467-75. But see Final Report of the Ao Hoc Working Group (ni U.S. 
Adherence to the Berne convention, reprinted 10 Colombia-VLA J. Law & 
Arts 513, 547 (1986) [hereinafter Final Report]. 

^ See Berne Convention, supra note 5, art. 6 bis (2) ; S. 
RICKETSOH, supra note 25, at 473-75. 

" See supra note 11; E.C. Directive, supra note 6, art. 
9 (excluding moral rights). See also Silke von Lewinski, E.C. 
Proposal for a Council Directive Harmonizing the Term of 
Protection of Copvriaht and Certain Related Rights. 23 INT'L 
Review of Indos. Prop. & Copyright Law (I. I.e.) 785, 801-03 (1992). 

" See Berne Convention, supra note 3, art. 15(3); 17 
U.S.C. 201(b), 302(c), 304(a) f as amended in 1992); Final Report, 
supra note 33, at 613-20 (stressing that the Convention "does not 
contain any general provision concerning works made for hire, and 
does not define the word "author" (or the ownership of 
copyrights);" and finding that U.S. Law is not clearly 
incompatible in the context of actual state practice) . "The 



370 



whole, other Berne Union countries tend to relegate the creations 
of corporate entities to neighboring rights laws covered by the 
Rome Convention,'^ to which the United States does not adhere. 
With some exceptions, they also confer the full life plus fifty 
term on creations by identifiable employee authors.^ However, 
these tensions with U.S. law were not considered a major irritant 
even in the 1980s, and recent tendencies in the evolution of the 
European Union's intellectual property law have greatly reduced 
them. 

For example, the E.C. Directive on computer progreuns, though 
purporting to treat eligible progreuns as copyrightable literary 
works, expressly recognized the principle of corporate creations 
and provided a term of fifty years for this purpose.'' The 



domestic copyright systems vary with respect to the recpjirement 
of 'authorship,' to the treatment of employee-authors in general, 
and to the extent they attribute authorship in certain classes of 
works to persons other than the actual intellectual creators." 
J.H. Reichman, Overlapping Proprietary Rights in University- 
Generated Research Products; The Case of Computer Procnrams, 17 
CoLDKBiA-VLA J. Law t Arts 51, 54-60 (1992) (citing authorities) 
[hereinafter Overlapping Proorietarv Rights!. 

" See supra note 16. 

" See, e.g. . Final Report, supra note 33, at 614-20 
(noting that Netherlands copyright law applies the work made for 
hire principle) . See generally S. Ricketson, supra note 25, at 

158-59, 346-49; AlAIH STROWEL, DROIT D'AOTBOR IT COPYRIGHT 

Divergences bt Convergences 323-389 (1993) [hereinafter A. Strowel] ; 
Ghislain Roussel, The Copyright of Salaried and Employed Authors 
— A Comparative Study of National Law s. 26 Copyright (W.I. P.O.) 221 
(1990) . 

* See Covincil Directive 91/250 on the legal protection of 
computer programs, [1991] O.J.L. 122/42, art. 2(3), reprinted in 
Sweet t Maxwells 's E.C. Intellectual Property Materials, supra note 6, at 
2 [hereinafter E.C. Directive on Computer ProgreuDS] . For 



371 



proposed E.G. Directives on data bases and commercial designs are 
also likely to embrace the principle of corporate creation,^ 
although in most cases, this would occur under sui generis 
regimes operating outside the relevant copyright laws as such.*' 
Above all, the E.G. Directive on harmonizing the term of 
protection of copyright and certain related rights expressly 
confers a seventy year term upon collective works and works whose 
rightholders under the domestic laws are deemed to be "legal 
persons." Concomitantly, this Directive prolongs the related 
rights conferred on performers, producers of sound recordings, 
films, and broadcasting organizations to a period of fifty 
years.** 



criticism of this approach, see, e.g. . Jan Gorbet, Does 
Technological Development Imolv a Change in the Notion of 
Author? . 148 R.I.D.A. 58 (1991); Herman Cohen Jehoreun, The B.C. 
Copyright Directives. Economics, and Authors^ Rights . 25 I.I.G. 
821, 829-30 (1994). 

*> See Amended Proposal of 4 October 1993 for a Council 
Directive on the Legal Protection of Databases, COM (93) 464 
final - syn 393 (1993), O.J.L. 308/1, art. 3(4), reprinted in 
Shsbt & Mazwsll's e.g. Inteixbctuai. Property Materials, supra note 6, at 
39, 41 [hereinafter Proposed E.G. Directive on Databases]; 
Proposal of 3 December 1993 for a European Parlieuaent and Council 
Directive on the Approximation of the Legislation of Member 
States on the Legal Protection of Industrial Designs, COM (93) 
344 final - COD 464 (1993), O.J.L. 345/14, art. 14(2), reprinted 
in Sweet & Maxwell's E.G. Intellectxiai. Property Materials, supra note 6, 
at 292, 300 [hereinafter Proposed E.G. Directive on Design]; see 
also Cohen Jehoram, supra note 39, at 829-31. 

*' See, e.g .. Proposed E.G. Directive on Databases, supra 
note 40, art. 13(2); Pamela Samuelson, The Missing Foundations 
of the Proposed European Database Directive (forthcoming 1996) 
[hereinafter Samuelson, Database Directive ] . 

** See E.G. Directive, supra note 6, arts. 1(3) (4), 3; 
von Lewinski, supra note 35, at 790-94, 798-801. 



372 



None of these provisions would, of course, necessarily 
resolve the difficulties that could continue to arise if U.S. law 
attributes work-for-hire status to a given work and the relevant 
domestic law within the EMropean Union continues to attribute the 
same work to an identifiable person, notwithstanding the 
Directive. With the exception of computer progreuns, however, the 
Directive does tend to equalize the terms of protection in the 
United States and the European Union when the copyrightable works 
in question are attributed to legal entities under both 
jurisdictions. Moreover, the disparities in the terms of 
protection that previously occurred when copyright law applied in 
one jxirisdiction and related rights law applied in the other are 
at least attenuated to the extent that related rightholders in 
the European Union (as well as corporate creators of computer 
progreuns) will now obtain a fifty year term rather than the 
twenty year term normally available under the Rome Convention.^ 

In these respects, H.R. 989, if enacted, would unilaterally 
worsen these existing disparities. By prolonging the term of 
protection for employer authors and corporate entities from 
seventy-five to ninety-five years, it would destabilize the d£ 
facto harmonization that has recently taken place, without 
addressing the underlying substantive issues.^ 



See Rome Convention, su pra note 16, art. 14. 
See H.R. 989, supra note 1, sec. 2(b). 



373 



2. Uncertainties Affecting the Comparison of Terms 

The TRIPS Agreement allows WTO member states to "implement 
in their [domestic] law more extensive protection" than its 
minimum standards require,^ and Article 7(6) of the Berne 
Convention expressly recognizes the same principle with respect 
to its minimum terms of protection.^ In the latter case, 
however. Article 7(8) of the Berne Convention retains a residual 
material reciprocity clause, known as the rule of the shorter 
term.*^ This clause encourages states exceeding the agreed terms 
of protection to override the principle of national treatment by 
limiting the term in the country where protection is claimed "to 
the term fixed in the country of origin of the work."** 

The E.C. Directive harmonizing the terms of protection goes 
one step farther by requiring European Community countries to 
apply the rule of the shorter term to authors and related 



** See TRIPS Agreement, supra note 5, art. 1(1). 

** Berne Convention, supra note 3, art. 7(6); see also 
Id., art. 19 ("not precluding the making of a claim to the 
benefit of any greater protection which may be granted by 
legislation in a country of the Union") . 

'" See id., art. 7(8). 

** See id. . arts. 5(1) (national treatment), 

5(3) (protection in the country of origin to be governed by 
domestic law), 5(4) (defining the country of origin), 7(8) 
(comparison of terms). Article 7(8) encourages states to apply 
the rule of the shorter term by requiring their legislators 
affirmatively to waive it if they so desire; but the rule is not 
obligatory. See, e.g.. World Intellectual Property Organizatioh, Gdidb 
TO THE Berne Convention for the Protection of Literary and Artistic Works 
(Paris Act 1971) 50-51 (W.I. P.O. ed 1978) [hereinafter Guide to 
THE Berne Convention]. 



374 



rlghtholders whose works and productions originate from third 
countries and who are not Conmunlty nationals.^ These provisions 
should thus prevent creators who are nationals of third countries 
from automatically obtaining the prolonged terms of protection In 
Community countries where protection Is sought, notwithstanding 
the principle of national treatment, absent a reciprocal 
provision on duration in the laws of the respective countries of 
origin. They also serve as "a means of persuading third 
countries to extend their terms of protection and thus to improve 
their levels of protection."** 

By similar logic, Congress should consider enacting a 
domestic version of this same principle under article 7(8) of the 
Berne Convention. A domestic rule of the shorter term would 
avoid bestowing the benefits of our seventy-five-year terms for, 
say, employer-created computer programs, producers of sound 
recordings, and the producers of television broadcasts upon 
rlghtholders originating in European Community countries that 
provide shorter periods of protection. Rlghtholders outside the 
European Community who adhered to the fifty-year minlmuD term for 
corporate productions under article 12 of the TRIPS Agreement 
would likewise obtain only fifty years of protection under a U.S. 
rule of the shorter term."* 



*• See E.C. Directive, supra note 6, art. 7; see also von 
Lewinskl, supra note 35, at 803-04. 

" von Lewinskl, at 803 (citing the legislative history). 

*** See supra note IIB and accompanying text. 



375 



However, some caution may be needed in view of the fact that 
Article 4 of the TRIPS Agreement introduced a Most-Favored Nation 
Clause (MFN)," long-familiar in trade law," into international 
intellectual property law for the first time." Some scholars 
have begun to question the continued viability of even the Berne 
Convention's own comparison of terms clause on the grounds that 
it inherently conflicts with Article 4 of the TRIPS Agreement,^ 
as might every bilateral arrangement in which a WIO member state 
affords a better "intellectual property" deal" to another member 
state without making that seune deal available to the membership 



^' See TRIPS Agreement, supra note 5, art. 4, which 
states: "With regard to the protection of intellectual property 
[as defined and limited by Art. 1(2)], any advantage, favour, 
privilege or immunity granted by a Member to the nationals of any 
other country shall be accorded immediately and unconditionally 
to the nationals of all other members." 

" See . e.g. . John H. Jackson, World Trade and the Law or Gatt 
249-72 (1969). 

" See, e.g. . Wolfgang Fikentscher, TRIPS and the Most 
Favored Nation Clause , in Current Issues im Ihtellectual Propertt, 
Proceedings of the Annual Conference of the International Association for 
THE Advancement of Teaching and Research in Intellectual Property (ATRIP) , 
Ljubljana, Slovenia, July 11-13, 1994, at 137, 137-39 (J. Straus, 
ed. , 1995) (stressing that, historically, "free trade is based 
upon a world principle and the protection of intellectual 
property upon national law and territoriality") . 

** See, e.g. . Fikentscher, supra note 53, at 140; Cohen 
Jehoreun, suora note 39, at 826-27. 

" However, the term "intellectual property" appears 
expressly limited to the specific subject-matter categories 
covered by the TRIPS Agreement. See supra note 51; Universal 
Minimum Standards, supra note 2, at 348-49. 



376 



as a whole. ^ Even If the Berne Union's comparison of terms 
clause were rescued by express exceptions to Article 4 of the 
TRIPS Agreement," as I think likely, the E.C. Directive limiting 
the benefits of longer terms to Community members might 
nonetheless fall afoul of the MFN Clause of Article 4." 
In a recent article on the TRIPS Agreement, I have 
interpreted Article 4 in a manner that would not override the 



" See, e.g. . Fikentscher, supra note 53, at 138-39 
(regretting this barrier to bilateral experimentation) . Prof. 
Fikentscher states: "It is a matter of logic that. . .[the] 
principle of [international] minimum protection and the principle 
of Most Favored Nation treatment stand to each other in 
opposition. For, wherever Most Favored Nation applies, it makes 
no sense to permit the members of the treaty to grant 
intellectual property protection which goes beyond the 
internationally stipulated minimum standard." Id. . at 139. S££. 
Al&S Hanns Ullrich, TRIPS; A dequate Protection. Inadequate 
Trade. Adecfuate Competition Policy . 4 Pacific Rim Law & Pol. J. 153, 
182-83, 183 n. 133 (1995) (stressing unclear meaning of MFN 
treatment in context of Intellectual property and regretting that 
it constrains parties from metking bilateral concessions) . 

" See, e.g. . TRIPS Agreement, supra note 5, art. 4(b) 
(exempting privileges "granted in accordance with the provisions 
of the Berne Convention (1971) or the Rome Convention authorizing 
that the treatment accorded be a function not of national 
treatment but of the treatment accorded in another country") ; 
see also id., art. 4(c) (exempting privileges and immunities "in 
respect of the rights of performers, producers of phonogrzuns and 
broadcasting organization not provided under this Agreement") ; 
and 4 (d) (those "deriving from international agreements related 
to the protection of intellectual property which entered into 
force prior to the entry into force of the NTO Agreement") . See 
ryrth?r infra text accompanying notes 59-66. 

" See, e.g. . Cohen Jehoreun, supra note 39 at 826-27 
(reasoning by analogy from E.C.J, decision 20 Oct. 1993, joined 
cases C-92/92 and C-326/92 - Phil Collins v. Imtrat 
Handelsgesellschaft mbH an d Patricia Im - und Export 
Verwaltungsqesellschaft mbH v. EMI Electrola GmbH. 68 CMLR 21 and 
28 Dec, 1993, No. 947-948, at 773-799 [hereinafter Phil Collins 
Decislonl ) . 



377 



rule of the shorter tern \inder the Berne Convention." While 
acknowledging that the precise nesh of all the relevant 
provisions remains uncertain, I believe the following overall 
frameworlc to be more plausible. 

First, international intellectual property treaties existing 
at the tiae that the TRIPS Agreement takes effect*** are generally 
immunized from the MFN clause (but not the national treatment 
clause except as expressly provided) under a grandfather 
provision within the TRIPS Agreement, which only this Agreement 
can override.*' Second, existing and future agreements 
establishing "customs unions and free-trade areas" of a regional 
character may, to varying degrees, be immunized from applying MFN 
treatment, and possibly national treatment, to non-TRIPS-mandated 
proprietary rights affecting intra-regional trade in intellectual 
goods, at least insofar as past practice under Article XXIV of 
the General Agreement on Tariffs and Trade is carried over to the 



" Ses. Reichman, Universal Minimum Standards, supra note 
2, at 348-51. 

*" See Final Act, supra note 5, Par. 3 (setting Jan. 1, 
1995, as target date for entry into force, if possible) ; WTO 
Agreement, supra note 5, arts. VIII, XIV. See also URAA, supra 
note 5, S 101(b) (authorizing President to implement WTO 
Agreement after determining that "a sufficient number of foreign 
countries are accepting the obligations of the Uruguay Round 
Agreements") . 

*' See TRIPS Agreement, supra note 5, art. 4(d) (with the 
proviso that immunized measxires "not constitute an arbitrary or 
unjustifiable discrimination against nationals of other 
members"). See also id . art. 4(b) (exempting inconsistent 
provisions of Berne Convention, supra note 3, and Rome 
Convention, supra note 3.) 



380 



Nevertheless, one must concede that the drafters of the 
TRIPS Agreement may themselves have been motivated by unresolved 
conflicts concerning the application of Article 4,"^ and that the 
extent to which prior respect for regional arrangements In GATT 
practice will be carried over to Intellectual goods cannot 
accurately be foretold. ** If for these or other reasons, the rule 
of the shorter term — whatever Its legal foundation — should 
fall to survive an attack based on Article 4 of the TRIPS 
Agreement (an unlikely result In my opinion) , then the position 
of U.S. creators vis-a-vis their E.C. counterparts would become 
particularly advantageous in the absence of amendments like those 
contained in H.R. 989. In such an event, U.S. creators would 
obtain all the benefits of the longer terms of protection under 
the E.C. Directive without having to prolong the benefits 
afforded Community creators under the Copyright Act of 1976. To 
the extent that longer terms abroad resulted in overprotection of 
cultural goods tending to produce economic disutilities, as 
critics charge," American firms operating under more rigorous 
conditions at home night be in a position to supply more 
competitive products abroad. Conversely, foreigners operating 



•** See, e.g. . Flkentscher, supra note 53, at 140 n. 2 
(reporting differences between representatives of the European 
Community, the United States, and Switzerland) . 

** See., e.g. . Cohen Jehoram, supra note 39, at 826-27. 

" SSSU_S.jl3ju, Dennis S. Karjala et al.. Comment of U.S. 
Copyright Law Professors on the C opyright Office Term of 
Protection Study . 12 E.I.P.R. 531^ 532-38 (1994) [hereinafter 
Karjala et al.. £2I!m£nt] • 



381 



under an overly protective regime at home night find their 
products less competitive on the relevant market segments in this 
country . ** 

If, instead, the European Community continues to apply its 
comparison of terns clause against U.S. creations notwithstanding 
Article 4 of the TRIPS Agreement, then Congress should 
defensively proceed to enact a domestic version of that seune 
rule, as suggested above. It would also justify further 
investigation of the desirability of enacting amendments like 
those in H.R. 989, in response to the European Union's use of 
"the comparison of terms as a means of persuading third countries 
to extend their terms of protection and thus Inprove their level 
of protection."" 

B. The Tern of Copyright as Cultural Policy 

The pros and cons of prolonging the tern of copyright 
protection are eunply expounded in the literatxire and in various 
statements teJcen at these Hearings, and I will not exhaustively 



** Cf . J.H. Reichman, Intellectual Property in 
International Trade; Opportunities and Risks of a GATT 
Connection . 22 Vand. J. Transnat'l L. 747, 844-48 (1989) 
("functional inplications of non-reciprocity") [hereinafter GATT 
Connection] . 

" von Lewinski, supra note' 35, at 803. 



23-267 96-13 



382 



review thea here.^ In the rest of this statement, I will 
selectively focus on those considerations that seem particularly 
relevant to an even-handed assessment of H.R. 989 on the merits. 

1. The Unattainable Goal of Uniform Law 

Even the opponents of H.R. 989 concede that an overall 
reduction In transaction costs might bolster the case for 
conforming U.S. copyright law to the B.C. Directive," even though 
International Intellectual property law does not mandate this 
result.^ The foregoing analysis of the divergent conceptual 
approaches to authors' rights suggests, however, that uniformity 
with respect to the term of copyright protection remains ein 
unrealistic goal even as between the United States and the 
European Union, which otherwise share a common concern for high 
levels of protection for cultural goods. When the rest of the 
world is factored into the calculus, the goals of greater 
uniformity emd harmonization than that which occurred under the 



'" See, e.g. . Statement of Marybeth Peters, Register of 
Copyright and Associate Librarizm for Copyright Services before 
the House Subcommittee on Courts and Intellectual Property, 104th 
Cong., 1st Sess., July 13, 1995. See also A. Strowel, suora note 
38, at 595-627; Kanwal Purl, The Term of Copyright - Is It Too 
Long in the Wake of Wew Technologies?. 1990 E.I.P.R. 12, 14-17 
(summarizing arguments for emd against longer terms of 
protection; Seun Ricketson, The Copyright Term . 23 I.I.C. 753 
(1992) . 

"" See, e.g. . Karjala et. al. . siuu:^ note 67, at 23. 

^ See supra text accompanying notes 9-44. 



383 



TRIPS Agreement become chimerical. Indeed. 

In principle, of course, H.R. 989 would harmonize the basic 
term of copyright protection applicable to traditional literary 
and artistic works as between two major trading blocks, the 
European Union and the United States, and this could, perhaps, 
pave the way to its adoption in the NAFTA context as well. In 
terms of economic effects as distinct from conceptual formalism, 
however, this apparent uniformity is offset by the divergent 
terms of protection that the U.S. and E.U. would continue to 
afford rightholders in sound recordings, cinematographic and 
audiovisual productions, computer programs, and in the bulk of 
all works made for hire. Including those within the categories 
listed above, whether employee-authored or merely deemed the 
products of corporate legal responsibility.''^ The pending E.G. 
Directives on databases and Industrial designs could fvirther 
deepen these differences.^^ 

In a larger perspective, a true harmonization exercise 
requires "horizontal levelling" between participating states to 
reduce the substantive legal and philosophical differences that 



" See supra text accompanying notes 14-19, 36-44. For 
the view that the works-for-hlre category has greatly expanded 
under the copyright Act of 1976 and that this undermines the 
classical assumptions of the Berne Convention, see Marcl A. 
Heunllton, A ppropriation Art and the Immanent Decline in Authorial 
Control Over Copyrighted Works . 42 J. Copyright Society USA 93, 98- 
110 (1994). 

^ See supra notes 40-41 and accompanying text. 



382 



review thea here.''" In the rest of this statenent, I will 
selectively focus on those considerations that seem particularly 
relevemt to an even-handed assessment of H.R. 989 on the merits. 

1. The Unattalneible Goal of Uniform Law 

Even the opponents of H.R. 989 concede that an overall 
reduction In transaction costs might bolster the case for 
conforming U.S. copyright law to the E.G. Directive,'" even though 
International Intellectual property law does not mandate this 
result.^ The foregoing analysis of the divergent conceptual 
approaches to authors' rights suggests, however, that uniformity 
with respect to the term of copyright protection remains am 
luireallstlc goal even as between the United States and the 
European Union, which otherwise share a common concern for high 
levels of protection for cultural goods. Nhen the rest of the 
world is factored into the calculus, the goals of greater 
uniformity and harmonization than that which occurred under the 



'" See, e.g. . Statement of Marybeth Peters, Register of 
Copyright and Associate Librarian for Copyright Services before 
the House Siibcommlttee on Courts and Intellectual Property, 104th 
Cong., 1st Sess., July 13, 1995. See also A. Strohel, fiUB]:^ note 
38, at 595-627; Kanwal Purl, The Term of Copyright - Is It Too 
Long in the Wake of New Technologies?. 1990 E.I.P.R. 12, 14-17 
(summeurizing arguments for and against longer terms of 
protection; Seun Ricketson, The Copyright Term . 23 I.I.C. 753 
(1992) . 

'" See, e.g. . Karjala et. al. . siiBl^A note 67, at 23. 

"" See supra text accompanying notes 9-44. 



383 



TRIPS Agreement become chimerical, indeed. 

In principle, of course, H.R. 989 would harmonize the basic 
term of copyright protection applicable to traditional literary 
and artistic works as between two major trading blocks, the 
European Union and the United States, and this could, perhaps, 
pave the way to its adoption in the NAFTA context as well. In 
terms of economic effects as distinct from conceptual fozTnalism, 
however, this apparent uniformity is offset by the divergent 
terms of protection that the U.S. and E.U. would continue to 
afford rightholders in sound recordings, cinematographic and 
audiovisual productions, computer progreuns, and in the bulk of 
all works made for hire, including those within the categories 
listed above, whether employee-authored or merely deemed the 
products of corporate legal responsibility.^ The pending E.G. 
Directives on databases emd industrial designs could further 
deepen these differences.^^ 

In a larger perspective, a true harmonization exercise 
requires "horizontal levelling" between participating states to 
reduce the substantive legal and philosophical differences that 



'^ See supra text accompanying notes 14-19, 36-44. For 
the view that the works-for-hire category has greatly expanded 
under the copyright Act of 1976 and that this undezmines the 
classical assumptions of the Berne Convention, see Marci A. 
Haunilton, Appropriation Art and the Immanent Decline in Authorial 
Control Over Copvriahted Works . 42 J. Copyright Socibty USA 93, 98- 
110 (1994). 

'* See supra notes 40-41 and accompanying text. 



384 



are directly or indirectly tied to the issue of duration.^ The 
European Connission has doggedly pursued this path with respect 
to the criterion of originality used to determine eligibility in 
the domestic copyright laws of the Community, for exeunple.^ To 
do otherwise would saddle the Community with hidden barriers to 
trade and disregard the edicts of the Europeam Court of Justice, 
as most recently manifested in the Phil Collins Decision .^ 

Absent such levelling to lessen the divergent national 
traditions of the participating states, however, a superficial 
alignment with respect to selected terms of duration alone 
produces illogical and contradictory results. By prolonging the 
basic term of protection afforded works made for hire under U.S. 
law from seventy-five to ninety-five years, H.R. 989 would only 
compound pre-existing differences and destabilize the degree of 
harmonization already underway in the context of U.S. - E.U. 
copyright relations.''* 

Moreover, developing countries already struggling to defray 
the costs of imported cultural and technological goods will 
hardly welcome lengthened terms of copyright protection, any more 
than the United States did at earlier stages of its own economic 
development. On the contrary, these countries would normally 



^ See, e.g .. Cohen Jehoram, supra note 39, at 827-31. 

■" See, e.g.. IjL., at 828-30. 

" See id. . at 825-27; supra note 58 and accompanying 
text. 

^ See sup ra text accompanying notes 26-44. 



385 



stand on their rights vinder the Berne Convention, except when 
expressly overridden by the TRIPS Agreement,^ or, perhaps, when 
longer terms happened to benefit economically significant local 
Interests. As noted, the TRIPS Agreement requires a minimum term 
of fifty years for most literary and artistic productions that 
are attributed to corporate entities. ^^ Subject to this proviso, 
the Berne Convention, together with the neighboring rights 
provisions of the Rome Convention and of the TRIPS Agreement, 
allow member covintries to maintain shorter terms of protection 
for sound recordings, cinematographic or audiovisual works, 
fixations of performers' renditions, photographic works, works of 
applied art, anonymous or pseudonymous works, joint works, zmd 
works made for hire in general (Including computer programs) than 
those that might be operative in either the European Union (under 
its Directive harmonizing the term of protection) or in the 
United States (if Congress enacted H.R. 989), as the case might 
be.*" Moreover, the developing countries would continue to retain 
both their shorter, basic term of life plus fifty years," and 
their rights to invoke compulsory licenses for the use of certain 



" See supra notes 11-13 and accompanying text. 

"'^ See supra note llB-13 emd accompanying text. 

"' See TRIPS Agreement, supra note 5, arts. 9, 10, 12, 14; 
Berne Convention, supra note 3, arts. 2(7), 7, 7 iiXs.; Rome 
Convention, supra note 16, art. 14; supra text accompanying 
notes 9-44 (describing effects of E.C. Directive and H.R. 989). 

" Berne Convention, supra note 3, art. 7(1); TRIPS 
Agreement, supra note 5, art. 9(1). 



386 



scientific and educational works on favorable terms." For the 
foreseeable future, in short, the developing countries have no 
reason to diminish their ovn competitive prospects or to 
otherwise burden their trade balances by exceeding the minimum 
international standards under the relevant treaties. 

Unless third countries were prodded into entering a 
harmonized E.U. - U.S. framework, the MFN and national treatment 
provisions of the TRIPS Agreement could tend progressively to 
render their culttiral and technical products more competitive in 
the international market than the corresponding goods produced in 
territories that had succumbed to higher levels of protection. 
To the extent that higher levels of protection in developed 
countries actually triggered the disutilities that critics 
attribute to overly long terms of protection in general, the 
benefits accruing to more competitively manufactured products in 
developing countries would fruther increase once the learning 
curve and other built-in disabilities afflicting producers in 
these countries were overcome. 

This course of conduct would undoubtedly subject developing 
countries to new trade pressures attempting to elicit higher 
levels of protection. Yet, the hard truth is that luch pressures 
will only generate countervailing demands for further trade 
concessions to offset the social costs of more intellectual 



" See Berne Convention, supra note 3, art. 21 and 
Appendix; Guide to the Berne Convention. bUBTA note 48, at 105, 
146-75. 



387 



property protection." Until it becones possible to evaluate the 
costs and benefits of the Uruguay Round as a whole, these demands 
for greater market access would almost certainly exceed the 
technical and political capabilities of developed countries to 
grant them. 

For these and other reasons, the proposals contained in H.R. 
989 cannot be justified as an exercise in harmonization. Their 
justification in terms of cultural policy remains to be assessed. 

2. The Logic of Cultural Policy: More Than Utility, Less Than 
Natural Law 

According to Professor Ricketson, a most ardent and 
distinguished supporter of authors' rights in general, "one is 
hard-pressed to find reasoned justification for the move for 
longer terns of protection," which culminated Internationally in 
the life plus fifty standard adopted at the Brussels Revision of 
the Berne Convention in 1948.*^ The explemation lies in the 
"strong emphasis that has always been placed on the natural 
property rights of the author in his work. In this respect, 
ideology has replaced critical inquiry, and has led to a long 
period of protection. . .becoming enshrined as «m absolute value 
that has seldom been challenged, except where there have been 



** See Relchman, Universal Minimum Standards , supra note 
2, at 382-85 ("compensation as the key to future concessions"). 

** See Ricketson, supra note 70, at 778, 783. 



388 



■oves for its further extension."** 

In practice, a life plus fifty formula derogates from both 
the natural property rights thesis, which argues for perpetual 
protection on a par with the treatment of tangible property, and 
from the incentive rationale for copyright protection, which 
posits that free competition should only be curtailed for the 
minimum period needed to overcome the public goods problem 
inherent in intellectual creations generally.** Among the various 
justifications for this standard that have been put forward, the 
most generally accepted and least controversial is that an author 
should have the possibility of providing for himself during his 
own lifetime and then for his immediate dependents.*^ Thereafter, 
the balance tips in favor of free access to the public domain for 
later authors who benefit from those who preceded them.** 



** Sam Rickbtson, The Bermb comveiitkm for the Protectioii or 
LITEBART AMD ARTISTIC WORKS: 1886-1986, at 323 (1987); see also A. 
Strowel, supra note 38, at 623-24. 

** See, e.g. . Ricketson, supra note 70, at 754-56, 763-67; 
Collapse of the Patent-Copvriaht Dichotomy, supra note 4, at 485- 
87; B?g fllsp William M. Landes & Richard A. Posner. An Economic 
Analysis of Copyright Law. 18 J. Legal Stud. 325 (1989); Wendy J. 
Gordon, An Inouirv into the Merits of Copyright; The Challenges 
of Consistencey. Consent, and Encouragement Theory. 41 Stan. L. 
Rev. 1343, 1351, 1413-63 (1989). 

" See, e.g. . Ricketson, supra note 70, at 761-62 (noting 

that the fifty year term rests on anecdotal but not scientific 
evidence) ; see also Theodore Limperg, Duration of Copyright 
Protection. 103 R.I.D.A. 53, 68-69, 72-77 (1980); Zecharia 
Chafee, Jr., Reflections on th e Law of Copyright . 45 Colom. L. 
Rev. 503, 507-08 (1945). 

*• See, e.g . , Jessica Litman, The Public Domain . 39 Emory 
L.J. 965 (1990); David Lange, Recognizing the Pu blic Domain . 44 
LAW & Contemp. Probs. 147 (1981). See also R. Anthony Reese, 



389 

\ 

In other words, despite the persistent claims of lawmakers, 

administrators, courts, and commentators, that United States 

copyright law rests on the utilitarian theory of protection, that 

theory will no more account for all the peculiarities of 

developed copyright systems, ours Included, than natural rights 

thinking and the protectlon-of-personality principle still 

prevalent in Europe: 

For example, incentive theory cannot explain the moral 
rights. . .that prevent even one who has paid to 
commercialize an author's work from doing so in a 
manner that could prejudice the author's honor or 
reputation." Nor will incentive theory adequately 
explain such paternalistic measures in American 
copyright law as the right to terminate transfers'** or 
even the long period of protection, which enables 
living authors and their immediate heirs to partake of 
revenues generated many years after the creation of 
their works. The incentive theory of copyright 
protection thus tends to underestimate the extent to 
which all states, to varying degrees, have deliberately 
subordinated efficiency to other cultural policy goals 
in the market for traditional literary and artistic 
works . *• 

Acknowledging that copyright laws represent cultural policy 

does not lessen their importance as providers of incentives to 



Reflections on the Intellectual Commons; Two Perspectives on 
Copyright Duration and Reversion . 47 Stan. L. Rev. 707, 717-19 
(1995) (discussing tensions in 1976 Act) . 

" See, e.g. . 17 U.S.C. 106(A), as amended by the Visual 
Artists Rights Act of 1990, Pub. L. 101-650, 104 Stat. 5128; see 
also W.R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks, 
AND Allied rights 309 (2nd ed. 1989) . 

** See 17 U.S.C SS203, 304(C) (1988). 

" J.H. Reichman, Goldstein on Copyright Law: A Realist's 
A pproach to a Technological Age . 43 Stan. L. Rev. 943, 947-48 
(1991) [hereinafter Realist's Approach "). See also Hamiliton, 
supra note 73, at 98-109. 



390 



create. Indeed, even the possibility such laws afford authors to 
provide for their heirs and dependents can, in part, be 
rationalized as an incentive to create.'' Nor does it mean that 
copyright laws disregard, or should disregard, the concerns of 
econoaic efficiency. Rather, "any efficiencies that copyright 
law produces in the market for literary and artistic works are an 
integral part of the larger cultural policy this body of law 
seeks to implement. By the same token, the most fundamental of 
all the negative economic premises underlying the mature 
copyright paradigm is that the peculiar mix of cultural and 
economic policies it implements on the market for artistic works 
should not disrupt competition in the general products market as 
regulated by the mature patent paradigm.'''^ 

In other words, the social costs attributable to the 
relevant cultural policies remain tolerable only so long as the 
peculiar and specialized market for literary and artistic 
productions remains insulated from the general products market, 
where industrial property laws traditionally tip the balance 
toward free competition rather than legal incentives to create.** 



" See e.g. . Ricketson, supra note 70, at 761. 

" Reichman, Collapse of the Patent-Copvriaht Dichotomy. 
fillBEA note 4, at 495. 

•* Sgg, e.g., 17 U.S.C. $102 (b); Baker v. Selden . 101 
U.S. 99 (1879); Benito Boats. Inc. v. Thunde r Craft Boats. Inc .. 
489 U.S. 141, 151, 156-60 (1989); Feist Publications. Inc. v. 
Rural Tel. Serv. Co.. m s. Ct. 1282 (1991). For the breakdown 
of the historical line of demarcation sepeurating artistic from 
industrial property law, figg Collapse of the Patent-Copvriaht 
Dichotomy. £yB£A note 4, at 496-512; Legal Hybrids . aslBTA note 



391 



It follows that the limits of cultural policy must be taken into 
account in any effort to expand the rewards and benefits flowing 
from the exclusive rights of copyright law.*^ 

Once proposals to extend the term of copyright protection 
are viewed through the lens of cultural policy, one can reach 
different conclusions depending on whether the beneficiaries are 
the authors and artists themselves or merely the publishers and 
corporate entities that invest in the exploitation and 
dissemination of cultural goods. *^ In this connection, the case 
for extending the protection of works made for hire appears 
particularly veaik, while the case for extending the basic term of 
authors' rights as such merits further consideration. 

a. Works Made for Hire 

Disregarding the rewards to authors and their heirs as the 
primary beneficiaries of cultural policy, the copyright monopoly 
also functions as an incentive to publishers, who must overcome 



4, at 2448-2504. 



** See, e.g. . Reichman, Realist's Approach , supra note 91, 
at 34 (stressing that this "need becomes imperative at a time 
when manufacturers of computer progreuns and other industrial 
products increasingly avoid competition by masquerading as 
providers of cultural goods entitled to copyright protection on a 
par with literary and artistic works." See also Reese, supra 
note 88, at 715-47. 

*^ See, e.g. . Statement of Prof. William Patry on H.R. 989 
before the Subcommittee on Courts and Intellectual Property, 
104th Cong., ist Sess., July 13, 1995. 



392 



the high degree of risX aversion that affects decisions to invest 
in the dissemination of literary and artistic productions.** I am 
not one of those who underestimates either the difficulties of 
prospecting the public's taste*^ or the degree of risk aversion 
that publishers must overcome. Nor do I believe that the level 
of investment in cultural industries would remain adequate if 
publishers were forced to depend solely on natxiral lead time." 
To the contrary, my studies make strenuous efforts to demonstrate 
that a contraction of natural lead time, with its attendant risks 
of market failure,**^ afflicts all industries engaged in 
information technologies and other cutting-edge, innovative 
pursuits. As a result, I believe new types of intellectual 
property rights — rooted in liability principles — will be 
needed to cope with subpatentable innovation of all kinds in the 
twenty-first century." 



•• See, e.g .. Ricketson, supra note 70, at 756-60. 

^ SLm. Edmund W. Kitch, The Nature and Function of the 
Patent System . 20 J. L. & EcoN. 265 (1977) (prospecting function 
of the patent system) . 

** BVtt g?^ Stephen Breyer, The Uneasv Case for Copvriahti 
A Study of Copyright in Books. Photocopies, and Computer 
Programs . 84 Harv. L. Rev. 281, 325 (1970) (marshalling no 
scientifically valid data for the opposite thesis) . 

^ See generally Wendy J. Gordon, Asymmetrical Market 
Failure and Prisoner's Dile mma in Int ellectual Property. 17 U. 
Dayton L. Rsv. 853, 854-59 (1992) (discussing conditions for market 
failure) . 

** See generally Legal Hybrids , supra note 4; Seunuelson 
et al. . Manifesto, supra note 4, at 2332-65 (predicting cycles of 
under-and over-protection with regard to computer programs) ; see 
Aififi Collapse of the Patent-Copvright Dichotomy, suqiza note 4, at 



393 



This said, the existing term of protection already afforded 
publishers of works made for hire under domestic law already 
appears overly long and empirically unjustified when viewed 
either as the product of a pure incentive rationale or, more 
generously, through the lens of cultural policy.""* To be sure, 
•one subject matter categories will be less indulged than others. 
For example, producers of classical music and other serious or 
high-brow works may require a longer period of time in which to 
recuperate their losses from unsuccessful ventures and to post a 
profit from those that do succeed."" As regards the great bulk 
of copyrightable productions, now including computer programs and 
other electronic information tools, however, the existing term of 
protection afforded publishers of works made for hire appears too 
long as matters stand. "° 

The evidence further suggests that still longer periods of 
protection would not elicit significantly greater investment in 
the copyright industries than already occurs, emd would instead 



512-20 ("The Competitive Ethos under Attack") ; Competition Law. 
Intellectual Prop erty and Trade, supra note 2, at 81-98 
("Interaction Between Intellectual Property emd Trade Regulation 
in Innovation-Based Market Economies") . 

"" See, e.g. . Ricketson, supra note 70, at 763-66 (finding 
it "hard to believe that publishers and other initial exploiters 
of works base their present investment decisions on prospects of 
exploitation that may only arise in the distemt future"); Reese, 
supra note 88, at 719-27. 



101 



See, e.g. . Purl, supra note 70, at 15. 



"° See, e.g.. id. , at 17-20 (citing authorities) ; see 
also Ricketson, supra note 70, at 763-69. 



394 



■imply add to the social costs of aonopoly that users of the 
copyrighted culture must already endure."" To accord more 
protection without hard evidence that the benefits outweigh the 
costs would thus amount to an indefensible subsidy at a time when 
the cause of regulatory reform dictates more, not less, emphasis 
on competition. Other industries could heurdly be blamed for 
seeking comparable protectionist cushions of their o%m. 

Contrary to the facile predictions of some, moreover, I 
believe that protecting corporate productions for ninety-five 
years could have uncertain, and possibly negative, effects on the 
long-term balance of trade. True, some domestic publishers whose 
employee-works become subject to the rule of the shorter term in 
foreign markets might benefit from the longer term at home 
because application of that rule turns in part on the continued 
existence of copyright protection in the country of origin."** It 
remains equally true, however, that most U.S. works made for hire 
(including computer programs) that are treated as corporate 
productions — rather than as the works of recognizable authors 
amd artists — in the European Community, whether under copyright 
or the neighboring rights laws, would themselves become subject 
to the E.G. Directive's own rule of the shorter term, based on a 



'" See, e.g. . Karjala et al. . suora note 67, at 532-33; 
supra note 102. 

"** See supra text accompanying notes 47-50. 



395 



fifty or seventy year duration as the case nay be.**** 

More generally, short-tem efforts to rig international 
intellectual property relations so that they favor a particular 
country or group of countries run the risk of disfavoring this 
Bame country or group of countries in a nedium or long-ten 
perspective. Copyright law is like a lottery that produces a 
vinner-take-all sweepstakes reward. Unlike other lotteries, 
however, the copyright petradign is constructed in such a way that 
the lucky strikes scored by some authors do not necessarily 
preclude similar strikes by others working in the S2une creative 
vein.'"* No one can predict the public's fancy more than a year 
or two in advance, if that. While consumers worldwide display 
unabated appetites for American films, music, and computer 
programs, there is no reason to doubt that European, and 
increasingly, Asian and Latin American producers will not 
periodically mount serious challenges in the future. One has 
only to recall the prominence of the English musical group known 
as "the Beatles" (and of English fashion designs as well) over a 
period of two decades to rein in the hubris of our present-day 
cultural exponents. To the extent that longer terms of 
protection are enacted into law, they augment the tribute that 



"" See supra text accompanying notes 14-17, 36-42. 
However, U.S. film "authors," as defined in the E.C. Directive, 
supra note 6, art. 2, might try to claim at least ninety-five 
years of protection in the European Community, in contrast with 
the life-plus-seventy term afforded E.C. film authors. 

»"* See, g.q,, Reichman, Collapse of the Patent-Copvriaht 
Pigh<?t<?ffy> supra note 4, at 492-96. 



396 



must be paid to successful foreign creators. They also augment 
the concomitant rislc that foreign firms operating in less 
protected environments will ultimately become more competitive in 
the world market than our overly protected domestic 
contestants . '*" 

Given the tendency toward more rapid exploitation of 
cultural goods in a digitalized universe, indeed, a good case can 
be made for shortening the seventy-five year term of protection 
already afforded corporate creators, at least with respect to 
some subject-matter categories.'"* Efforts to further extend that 
term in the absence of hard evidence showing that the resulting 
social benefits would outweigh the palpable social costs appears 
to be mere rent-seeking by powerful special interests.'"*^ 

b. True Authors and Artists 

The drafters of the E.G. Directive claim that their primary 
motive in adopting a basic term of life plus seventy years for 



"" In this connection, it is well to recall that the 
French delegation to the Paris Convention in 1863 was reviled as 
traitorous at home because it was thought that they had opened 
French markets to too much foreign competition. It may well be 
that the heroes of today's multilateral trade initiatives, 
especially the TRIPS Agreement, will suffer a similar fate down 
the road. 

'" See, e.g. . Puri, supra note 70, at 17-18; Karjala et. 
al. . supra note 67, at 533; see also S.J. Liebowitz, Copyright 
Law. Photocopying, and Price Discrimination. 8 Kesearch in L. and 
EooN. 189, 198 (J. Palmer, ed. 1986). 

'**^ Cfj. Jessica Litman, The Exclusive Right to Read . 13 
Caroozo J. Arts & Entertainment L.J. 29 (1994). 



397 



traditional literary and artistic works was the need to reconcile 
copyright law with the longer lives that authors and artists now 
expect to lead.'*" This apparently innocuous declaration has been 
net with almost uniform skepticism even by those commentators who 
otherwise congratulate the E.G. Commissioners on the success of 
their Directive."" Their derision stems in part from the 
realization that a prolongation of the author's own life 
automatically tends to offset some of the need for longer 
protection after death.*" Mainly, it stems from a nearly 
unanimous conviction that, despite the lofty position of authors 
in Continental copyright theory, it is their publishers who would 
normally expect to benefit from the lengthened term of protection 
in practice, as transferees of the authors' copyright 
interests."* 

The real motive for the Commission's Directive, and the 
reason it has elicited grudging approval, is that it reconciles 



"* See, e.g. . B.C. Directive, supra note 6, Preamble, item 
5 ("average lifespan in the Community has grown longer, to the 
point where . . . [standard] term [of life plus fifty] is no 
longer sufficient to cover two generations"); von Lewinski, 
supra note 35, at 788-89 (citing legislative history). 

"" See, e.g.. id. , at 788-90, 807; Cohen Jehoram, supra 
note 39, at 834-35 ("this argument is far from convincing"). 

"' See, e.g.. id. 

"* See, e.g. . von Lewinski, supra note 35, at 788 
("usually, assignment or transfer of copyright goes to an 
exploiting enterprise for the entire duration of protection") ; 
see also Rlcketson, supra note 70, at 768-69; Puri, supra note 
70, at 17 ("The usual pattern is that the author seldom retains 
the copyright") . 



398 



the goal of rapidly ellninating trade distortions arising froB 
different levels of protection in the Community at large without 
curtailing rights previously acquired \inder the most deviant 
domestic lavs.'" Once Germzmy, and to a lesser extent, France, 
had haphazardly moved to longer periods of protection,"^ the 
technical ground rules of market integration thus led to an 
upward harmonization, despite widespread recognition that, on the 
merits alone, the German and French leads were examples of what 
not to do."' Indeed, a more enlightened view might have 
installed an additional twenty-year domain publique pavant . 
during which period users would enjoy free access to works that 
had otherwise entered the public domain on condition that they 
paid equitable compensation directly to authors, but not to 
publishers."' Needless to say, the publishers' lobby defeated 
this sensible proposal and beat back a last minute push to retain 
the llfe-plus-flfty formula as well. 



'" See, e.g. . E.G. Directive, supra note 6, Preamble, 
items (9), (18); Cohen Jehoram, supra note 39, at 834-35 (choice 
of seventy years p.m. a. "justified/. . ./by the aim of all the 
harmonizing effort, neunely the realization of the Internal 
market"); von Lewlnski, supra note 35, at 834-36. 

"* See generally . A. Strowel, supra note 38, at 600-01, 
602-05, 623-27. 

'" See, e.g.. id. , at 624-27; von Lewlnski, supra note 
35, at 788-90. 

"* See, e.g. . von Lewlnski, supra note 35, at 789-90, 790 
n. 23 (approving this proposal, but noting that the Commission's 
earlier proposal to this effect in 1980 had been rejected) ; see 
alSfi Rlcketson, supra note 70, at 784 (endorlng this scheme) ; 
Statement of Pa try, supra note 95A. 



399 



Given this background, Congress night plausibly reach the 
sane conclusion on this specific (question as the drafters of the 
E.C. Directive did, with less contorted reasoning. The clain 
that the existing tern accounts inadequately for the greater 
longevity of authors and their heirs under present-day conditions 
often rings true, even though the nagnitude of the problen is 
held in check by the possibility that the original author's otm 
lengthened lifespan will reduce the burden on his or her 
dependents. He see this often in Nashville, where families 
literally depend on royalties fron country nusic that continues 
to be exploited long after the composer's or lyricist's death. 
The prospects that persons in no way connected with the creation 
or pronotion of such works might continue to exploit then without 
paynent to the authors' direct heirs does raise concerns of 
fairness and equity, as a matter of cultural policy. '"^ 

Under the Copyright Act of 1976, noreover, authors and their 
dependents expressly retain the right to teminate at least one 
transfer of their exclusive rights, and possibly others, at the 
expiration of thirty-five years fron the date such grants were 
nade.'" To the extent that domestic law otherwise inhibits 
publishers from circumventing this termination right, the chances 
that a lengthened basic term of protection would actually benefit 
authors, artists, and their Immediate feunilies, rather than 



"•* See, e.g. . Reese, suora note 88, at 724-25. 

*" SS& 17 U.S.C. SS 203, 304(c) (1988). For simplicity, 
only S203 is considered here. 



400 



publishers, are higher in the United States than in Europe. This 
BzJces such a proposal worthy of further study as a matter of 
cultural policy.'"^ 

This line of investigation presupposes, however, that 
Congress should deem it advisable to strengthen and further 
safeguard authors' termination rights in the context of an 
adjustment to the term of protection. At the least, a technical 
reexeunination of the termination right should be underteJcen, with 
a view to eliminating its weaknesses, and to closing loopholes 
through which publishers might otherwise capture the extended 
period of protection. 

For exeunple. Section 203 may already authorize multiple 
terminations at successive thirty-five year intervals,"* but no 
harm would be done if Congress said so expressly and thus 
prevented the Courts from indulging in discordant speculation 
about freedom of contract. Errant judicial opinions in this 
regard need correction,"' while the wholesale exemption of 
derivative works from termination under Section 203 should be 
reassessed.*^ At present, the derivative rights holder may 
expect to continue to exploit a derivative work under eui initial 



"'* See, e.g. . Reese, supra note 88, at 732-35. 

"' Professor Karjala, for one, reads the statute this way. 

"• See Mills Music. Inc. v. Snvder. 416 U.S. 153 (1985); 

Howard B. Abrams, Who's Sorrv Now? Termination Rights and the 

Derivative Works Exception , 62 U. Det. L. Rev. 181 (1985). 

'^ Se£ 17 U.S.C. SS106(2), 203(a), (b)(1) (1988); Reese, 
supra note 88, at 733-35, 740-41. 



401 



transfer, without periodically sxibjecting the payment structure 
to scrutiny on equitable grounds, even though he or she nay not 
produce a new derivative work once the initial grant has been 
terminated.'^ Because most derivative right holders are 
corporate entities, a failure to reexamine this provision could 
effectively deny authors, as distinct from publishers, many of 
the benefits to be expected from prolonging the basic term of 
protection. 

Radical measures to solve this problem are undesireJsle, 
however, because it might prove unfair to expose publishers, who 
had invested heavily in derivative works, and who had paid 
authors handsomely for the privilege, to the full rigors of the 
termination right. '"^ It suffices to oblige the derivative right 
holders periodically to renegotiate the rate at which royalties 
are paid in light of changed circumstances, if any, in return for 
the grantee's right to pacific enjoyment of the derivative work 
even during the period of years that might be added to the 
existing life-plus-fifty term. In this connection, the treatment 
of existing derivative works under the restoration of copyright 
provisions, enacted in connection with the TRIPS Agreement, could 
be emulated with respect to tremsf ers of the right to prepare 
derivative works in general.*^ 



"* SSS 17 U.S.C. S203(b)(l). 

"^ See . e.g. . P. Goldsteim, supra note 18, S4.9.3.2. 

'" See U.R.A.A., fiiU2£A note 5, section 514, amending 17 
U.S.C. 104A(a)(3). 



402 



3. The Limits of Cultural Policy 

If, after further study. Congress opted to combine a 
prolongation of the basic life-plus-fifty tern with a 
strengthened right of termination, as outlined above, it should 
consider further undertaking to clarify the frontier between 
copyright law and other intellectual property laws, with a view 
to limiting trade distortions in the general products market. 
Nhile this opens a topic that this statement cannot deeply cover, 
there are two closely related phenomena that require attention in 
this regard. One is a short-term need to reinforce the crumbling 
line of demarcation that historically separated artistic from 
industrial property, pending the formulation of new approaches to 
the protection of borderline subject matters that fit imperfectly 
within the classical patent and copyright paradigms. The other 
is the long-term need to develop such new approaches, in order to 
reduce the pressure on the world's intellectual property system 
while elevating the level of investment in routine, subpatentable 
innovations generally.^ 

Fortunately, the federal appellate courts have facilitated 
the first task by re invigorating the rule of Baker v. Selden "* as 
a barrier to copyright protection for functionally dictated 



'° See generally . Legal Hybrids , supra note 4, at 2500- 
2557; see also Collapse of the Patent-Co pvright Dichotomy . bUBTA 
note 4, at 504-19 ("Empirical Limits of the Classical Bipolar 
Structure") . 

'« Baker v. Selden. 101 U.S. 99 (1879). 



403 



■atter of all kinds. "* These Issues are poorly understood even 
aaong experts, however, and there is always the risk that courts 
•ay backslide, especially in cases where they perceive eleaents 
of gross misappropriation not otherwise actionable in unfair 
competition law."* In other words, efforts to avoid 
overprotecting borderline subject matter in copyright law, such 
as computer programs and commercial designs, readily give way 
over time to countervailing decisions that offset the resulting 
state of underprotection with a renewed risk of overprotection. 
History shows, indeed, that emy protracted inability to deal with 
a market failure affecting borderline subject matter that eludes 
the classical patent and copyright paradigms tends routinely to 
trigger recurring cycles of over-emd underprotection."^ 

In this context, the difficulties encountered in formulating 
a proper regulatory framework for computer progrzuns and 



"^ See, e.g.. Realist^s Approach, supra note 91, at 970- 
76; Pamela Samuelson, Computer Programs. User Interfaces, and 
Section 102 fb^ of the Copyright Act of 1976; A Critigue of Lotus 
v. Paperback . 55 Law and Contekp. Probs. 311 (1992); J.H. Reichman, 
ElggtrgnJg Inggnnatjgn T9<?ig> supra note 6A, at 455-61. See also 
Jessica Litman, Copyright and Information Policy . 55 Iah add 
OoHTEMP. Probs. 185 (1992). 

"* See, e.g.. Whelan Assocs. v. Jaslow Dental Laba. . Inc., 
797 F. 2d 1222 (3d Cir. 1986) (broad copyright protection for 
elements of structure, sequence, and orgamization in coa^uter 
programs), cert, denied. 479 U.S. 1031 (1987); see also Designs 
and New Technologies , supra note 26, at 81-123 (criticizing use 
of LanheuB Act $43 (a) to protect unpatenteUdle, noncopyrightable 
industrial designs) . 

*" See, e.g.. J.H. Reichman, Design Protection and the 
Legislative Agenda . 55 Lam and Contekp. Piujbs. 281, 287-90 (1992) 
(case of industrial designs); Legal Hybrids , supra note 4, at 
2504-2519. 



404 



industrial designs is not some isolated, transitory phenomenon, 
but rather two facets of an ongoing technological revolution 
affecting electronic information tools, biogenetic information, 
and other cutting-edge technical pursuits. The problem is that 
these and other design-dependent forms of subpatentable 
innovation do not fit within the classical intellectual property 
paradigms. The further inability of classical trade secret law 
to protect the applications of scientific know-how most valuable 
to industry today then tends to generate a progressive 
contraction of natural lead time under present-day conditions.*^ 

Without further delving into these complex matters, my point 
is that, unless Congress begins actively to investigate these 
problems, the odds are high that the winds of overprotection 
blowing from the European Community — as evidenced by one 
economically unsound intellectual property Directive after 
another — will lead to a proliferation of equally ill-conceived 
legislative initiatives over here.'® This, in turn, could yield 
cvunulative protectionist restraints on free competition that 
could irreparably harm the small and medium-sized firms largely 
responsible for this country's continued technological 
superiority. To forestall future misadventures of this kind. 
Congress should begin to investigate the need for a new 



"* See generally. Legal Hybrids, supra note 4, at 2434-52, 
2504-2519. 

»» See id. . at 2453-2500 ("The Proliferation of Legal 
Hybrids: Selected Case Studies"); see also Seunuelson, Database 
Directive, supra note 41. 



405 



intellectual property paradigm not rooted in the exclusive rights 
Bodel typical of the patent and copyright paradigms, even as it 
struggles to perfect these S2une paradigms with respect to their 
traditional objects of protection . "** 

Any decision to increase the term of copyright protection as 
an instance of cultural policy should thus trigger a searching 
investigation into the limits of cultural policy in an Age of 
Information. If this investigation then leads to the elaboration 
of new protective schemes that can cure market failure without 
erecting new barriers to entry, it would ultimately free U.S. 
innovation law from the grip of undemocratically appointed 
foreign bureaucrats who have surrendered to sectoral 
protectionist demands. This, in turn, could help to ensure that 
American innovation law continues to help American innovators to 
lead the way into a complex technological future. 

C. Specific Recommendations 

The foregoing analysis suggests that enactment of H.R. 989 
in its present form would be premature and counterproductive. 
Proposals to lengthen the term of copyright protection for works 
made for hire seem paurticularly inopportune, although Congress 
should give further study to the possibility of prolonging the 



"" See generally. Reichnan, Legal Hybrids , supra note 4, 
at 2520-2557 ("Portable Trade Secrets"); see also Samuelson et 
al.. Manifesto , supra note 4, at 2413-2430. 



406 



basic tern of life plus fifty years. 

Whether or not specific action is taken on the proposals 
contained in H.R. 989, Congress should enact an American version 
of the rule of the shorter term to limit some of the adverse 
effects of recent initiatives in the Etiropean Community. At the 
same time, Congress should monitor the evolution of the TRIPS 
Agreement, with a view to ensuring the overall compatibility of 
such a rule with the Most Favored Nation clause of that 
Agreement . 

If Congress decides to prolong the basic term of protection 
for true literary and artistic creations as a matter of cultural 
policy, it should take steps to strengthen the author's 
termination rights under existing law. This is needed to ensure 
that authors, rather than publishers, reap the benefits of such a 
policy. The merits and demerits of a "paying public domain" also 
deserve study. However, the term of protection currently 
afforded works made for hire should not be further extended, lest 
U.S. law become overly protective in comparison with the 
applicable foreign laws generally. 

Looking to the future, it seems clear that Congress will 
have to investigate the limits of cultural policy in at least two 
dimensions. Pressures for greater U.S. compliance with moral 
rights will certainly grow, and Congress may wish to consider 
measures to preserve the domestic cultural heritage as a possible 
counterweight to demands for exorbitant protection of such 
rights. 



407 



More important, Congress should lose no tine in 
investigating the inability of the classical copyright and patent 
paradigms adequately to protect new technologies that progress 
through small, incremental improvements in design and know-how, 
rather than through major inventive steps. Unless timely action 
is taken to deal with borderline subject matter that falls into 
the penumbra between the classical patent and copyright 
paradigms, efforts to further strengthen copyright law by, say, 
prolonging the basic term of protection, could boomerang against 
some of this coiintry's long-term trade interests, which it was 
nominally supposed to help. 



408 

Mr. MOORHEAD. Thank you. 

There was one concept that was presented here that I want to 
ask a couple of questions about, and that's the idea of being able 
to disregard contracts because they're old or because situations 
have changed. I leased a piece of property one time for a very small 
amount of money for a long period of years, and that property be- 
came very valuable. The man that leased it from me was able to 
release it for about four or five times what I had leased it to him. 
I don't think I'm entitled to that money because I made a contract; 
things changed, and I don't think I'm entitled to getting additional 
remuneration because things have changed or because Government 
actions caused it. I have real concern with rescinding any kind of 
a contract that is made between two parties. If you've got a 12- 
year-old child, they have to have a legal guardian or it's not a valid 
contract to begin with. It isn't really — the guardian, on behalf of 
the child, is making the contract, if there is a contract. 

Mr. Patry. I'm happy to answer that. There are a few responses. 
One response is that the origins of these music contracts — and this 
is in my written statement, pages 2 through 3 — ^you can go back 
as far as 1919, when a lawyer for a music publishing company said, 
**You know, even though the Copyright Act was just passed 10 
years ago" — and that's when we went to a term of 28 plus 28 years, 
56 years — ^"I'm going to put in all of our contracts a provision say- 
ing that if at some time in the future, decades, decades later. Con- 
gress happens to extend the term of copyright, the publisher is 
going to get it. What does it cost me? Nothing. The/re words; I can 
put them down there." And, Mr. Moorhead, they did. They were 
put in every single music publishing contract. If you wanted to sign 
a contract, that's what you signed. Did the music publisher bargain 
for that? Of course not. Did the publisher who purchased the copy- 
right pay for that? Absolutely not. At that time that contract was 
for 56 years because that's all Congress gave. The person who 
bought the copyright paid only for 56 years because that's all they 
could get. 

I don't think that Congress in 1995 should be governed by what 
some publishing lawyer did in 1919 to put boilerplate language in 
a contract. The publisher got everything it could from that contract, 
50 years, and nothing more. 

The second answer is that, yes, parties to private contracts 
should be able to negotiate good deals, bad deals, and reasonable 
deals, whatever, but that's not what we're talking about here. 
What we're talking about is what the U.S. Congress does, and what 
the U.S. Congress does pursuant to a constitutional provision that 
says: "You, Congress, have the power to grant copyright to authors 
to benefit the public." And I think it's very fair for you to say 75 
years after boilerplate language was put in, and you're giving a 
new property right that that right should go to the author. We're 
not talking about a private deal that you privately have to stick to. 
We're talking about 75 years later when Congress decides to give 
new property, because this 20 years is new property. It's going to 
be exploited now. I think it's fair for you to say, what's the correct 
public policy in granting new rights, new rights that weren't in ex- 
istence when that contract was signed. I think under the Constitu- 



409 

tion you have to give it to authors, and I think the pubUc poUcy 
has to be to give it to authors. 

Mr. MoORHEAD. Yes? 

Mr. Reichman. Your question is a good one. Narrowly, let me 
just say we already have adopted the policy of terminating authors' 
contracts to restore ownership of copyrights after 35 years. So this 
would not be a novel principle. It would just be continuing a prin- 
ciple we've already accepted. 

The question is, why do we do this? Why do we treat intellectual 
property different from tangible property? Well, if you think about 
it, it is different because you can put up a fence around your prop- 
erty and you don't need the State to intervene, and I can't come 
on to your property. But, in reality, there are no fences around in- 
tellectual property. There would be no publishers unless you, as 
Congressmen, manufactured these artificial legal fences that travel 
imperceptibly with intangible works and that tell me, even though 
I have possession of the physical support that I can't make uses of 
the work it embodies. 

Why do you create these legal fences? Because you want to make 
a market that wouldn't exist without intellectual property rights. 
However, you also want to attain a fair market place and a com- 
petitive balance between those who create and those who exploit. 
Therefore, when you make that market artificially and erect a ficti- 
tious fence that doesn't exist in nature, you tell publishers that we 
have to look out for our authors and our artists because people like 
W.C. Handy can't always look out for themselves. So we have a pa- 
ternalistic element in our copyright law; all copyright laws contain 
some paternalistic measures to protect authors. 

And I don't think we need to apologize for it. We would think 
twice about disturbing a lease; but I don't think we would need to 
think twice about allowing W.C. Handys, to terminate transfers, 
because if we didn't already give the publisher this artificially cre- 
ated exclusive right, he couldn't exploit the artistic works of the 
W.C. Hamdys in the first place. So it's only fair to say, well, if he 
exploits your work, you, the artist ought to get a fair return for as 
long as he exploits it. 

Mr. MoORHEAD. Well, you know 

Mr. Hoke. Would you yield for a moment, Mr. Chairman? 

Mr. MOORHEAD. I'd be happy to. 

Mr. Hoke. The point you're making, the only problem with it is 
when you say that the publisher couldn't exploit the right if we 
didn't give the right to Handy in the first place, it's a little bit cir- 
cular in that, if the right wasn't given, if the right had not been 
given to the author in the first, then there would be no right 

Mr. Reichman. There would be no market. There would be zero 
lead time. Anyone could copy such a work 

Mr. Hoke. Precisely. Everybody would be able to publish the 
same piece of intellectual property. 

Mr. Reichman. And the thinking is that market failure would be 
virtually total; that it would be a great disincentive to invest in 
these enterprises because you can't tell in advance which works are 
going to be successful. Even a very successful one would be there 
for a minute only, and then copiers would move in like sharks. 
Consider even the most successful musical comedies, say those of 



410 

Rodgers and Hammerstein. You may recall all their successes. 
Their investors know the two and three times in a row when they 
failed. The copyright monopoly makes this type of investment pos- 
sible by insuring that free riders cannot come in and reduce the 
lead time of the investor to zero by simply copying the product that 
succeeds. Remember, there's no trade secret law available in copy- 
right. What you see is what you get. You can't keep anything back. 
So you artificially manufacture this market by granting exclusive 
rights to intangible creations, a market that wouldn't otherwise 
exist. All I'm suggesting is that in manufacturing it, you have a 
burden to the public that you don't have with respect to tangible 
property, where everyone takes care of themselves. 

Mr. MOORHEAD. Well, what do you do in a situation like you buy 
a Picasso when Picasso was young and you get it for $1,000, and 
Picasso becomes famous and eventually dies, but you bought it for 
$1,000. You own the copyright on that figure that you bought, but 
then 50 years later you say, hey, I can make some money on this 
by putting out copies, duplicate copies of this. You have the copy- 
right; you can do it. 

But your argument falls flat on its face if you're going to let them 
do that. You'd refer it back to the family of Picasso. 

Mr. Reichman. I expect that sooner or later we're going to be in 
a hearing to talk about that. In Europe they have a right called the 
droit de suite which allows 

Mr. MoORHEAD. Well, I know they do and that's why I brought 
the point up. 

Mr. Reichman. That's a very interesting concept. I personally am 
not prepared to speak in favor or against a droit de suite today, but 
I think your point is very well taken, that it raises the kinds of 
things we're talking about, equitable considerations. And in Cali- 
fornia, I'm sure you know that that you have droit de suite resale 
royalties for this purpose: that is, to help painters receive a share 
of the added value from the resale of their works over time. And 
I think that that point is fully consistent with Bill Patr/s points 
about the need to protect 

Mr. Patry. Mr. Chairman, if I could respond — ^that's not the law 
in the United States, as you know. The situation you're talking 
about doesn't occur here. If somebody buys a Picasso, they don't 
buy the copyright; they buy the physical object. And if the value 
of the physical object goes up, that's the way it goes for Picasso, 
but that's not what we're talking about here. 

What we're talking about here is the copyright and we're talking 
about Congress giving new property to somebody that didn't exist 
at the time the contract was signed. The question is, who's going 
to get the benefits? I just don't understand 

Mr. MooRHEAD. Well, it's still property. You own a motion pic- 
ture. You own whatever it is you own that you have bought. It's 
still property. 

Mr. Patry. Well, that's true; you can buy the copyright. And 
when you bought it in the past, you negotiated for 56 years. We 
now have a market in 1995. Congress is going to give 20 more 
years for that market. The question is, are you going to let authors 
sit down at the table and negotiate for what the value is worth in 
1995 or not? Or are you going to let the person who bought the 



411 

copyright in 1920 sell it to the public at 1995 rates and the au- 
thor's not going to be able to share in that? I don't know why there 
should be a subsidy. Without a right to renegotiate, authors are 
paying a subsidy to people who bought it long ago. I don't know 
why it's wrong to let an author and his family, the people whom 
this bill is supposed to protect, sit down and negotiate for what it 
is worth now. You're giving the 20 years now. You didn't give it 75 
years ago. It's a question of fairness. 

Mr. MOORHEAD. I'm of the opinion — and I know that the direc- 
tion things go, if you sell your services with all you create for a cer- 
tain amount, say in todays market a million dollars, you might 
only be able to get a half a million if you had all kinds of strings 
tied to that sell. Presumably, they've contracted for it, but they 
made a deal. They made a contract. They made a sale. Aiid they've 
probably been paid more than they would have been paid if there 
were strings on it. And, yet, if the Government come back and puts 
the strings on it, they have certainly interfered with the private 
contract arrangement. 

Mr. Patry. I don't know how you can say there's interference by 
the Government if the contract is being honored for every single 
day that it was negotiated, and what you're talking about is giving 
something that neither party expected, anticipated, bargained for, 
or paid for. 

Mr. MoORHEAD. We have all kinds of Government changes made 
due to zoning of property of all kinds. If the Grovemment makes 
rules after that, that would make it more expensive or make it 
cheaper; that doesn't alter the terms of the contract. And that's 
something that was never anticipated, but it still happened. 

I wanted to ask Mr. Belton something. You were referring — ^you 
know, in the early days of the motion pictures — I grew up in the 
neighborhood. So I watched them to a great extent come along. The 
early motion picture companies were just little companies really, a 
lot of them. They didn't have a lot of money for modem-day storing 
of motion pictures, and so forth, like we have now. There's no ques- 
tion about it; a lot of them were lost. 

But if you would go through the Disney libraries and Sony's and 
Warner Brothers' and others out there now, you would find that 
they are very meticulously being cared for, and the opportunity of 
them being discarded or lost just isn't really there any longer. 
Things have changed by the years, and I think that film preserva- 
tion is wonderful and I have supported it all along. It's nice for a 
Grovernment control agency or support agency to have those avail- 
able for people that want to use them or see them at a given time, 
or at least know that they will be there for years to come. 

But it's very difficult to criticize those early-day studios for hav- 
ing lost some of those things that we wish they would 

Mr. Belton. Well, it certainly is the nature of the medium itself. 
We would expect to find books published in the same period in li- 
braries, but it's because of the unstable nature of motion picture 
film and the nature of the business — ^it was quite a different busi- 
ness from publishing — ^that these films don't survive. And the ones 
that do tend to belong the major six to eight studios who have sur- 
vived along with them. So you're right, there is a great problem in 
these small companies that have disappeared that have made 



412 

films, but many of them, like Mutual, which made all the Chaplin 
films, these films are in the public domain and you can find them 
everywhere. They're the only Chaplin films, in fact, that you can 
show in universities because the Chaplin estate has decided to 
withhold all of his feature films. This is from, "The Gold Rush" I 
guess is still public domain. You can't rent them. You can't see 
them at a theater. You can get them on video, if you want. So every 
story is going to be different about the way in which films have 
been regarded and preserved. Chaplin preserved his films that he 
owned very, very carefully. 

Mr. MOORHEAD. For those of you who like "Gone with the Wind," 
they'll bring them out one at a time later on and they'll be very 
valuable. People will come and see them. 

Mr. Belton. But even "Gone with the Wind," there was trouble 
with the color deteriorating, and if they weren't careful about 
checking their preservation process, it might not have been re- 
stored fully. 

Mr. MooRHEAD. I recognize the gentleman from Michigan. 

Mr. CONYERS. Please don't show "Gone with the Wind" at a hear- 
ing, Mr. Chairman. I'd just as soon pass on that one. [Laughter.] 

Mr. MooRHEAD. I just picked that one out of the hat. 

Mr. CONYERS. I know. 

Dear friend Carlos, where is your sense of capitalistic Republican 
responsibility here? Here you come weighing in on the side of big 
government, and all these professors are doing — we had a wonder- 
ful hearing. We had Government people. We bring in the pre- 
eminent leader of American cultural music, Quincy Jones, and then 
you bring in these four guys. And here this little party is getting 
turned upside down, and you're opposing people that produce, inde- 
pendent entrepreneurs, businessmen, like in early studios in the 
days you grew up in your neighborhood, and now you're saying, no, 
we don't think that private ownership rights should be given that 
greater regard. I am shocked as I listen to you here 

Mr. MOORHEAD. Well, you misunderstood what I said. 

Mr. CoNYERS. Are you for the little guy? Are you for the small 
businessman? 

Mr. MOORHEAD. I'm for the sustaining contractual rights. 

Mr. CONYERS. You're for what? 

Mr. MOORHEAD. Sustaining contractual rights. 

Mr. CoNYERS. Well, let's worry about tlus a little bit more be- 
cause you called this panel — this is almost like the days before the 
Republican takeover. I mean, if I were Chair, I would have you 
guys up here, but you call these people 

Mr. MOORHEAD. We try to be fair. We bring every point of view 
we can bring. 

Mr. CONYERS. You brought these men full well knowing what 
they might do in this hearing, and, damn it, they've done it, Carlos. 
[Laughter.] 

Mr. Hoke. Would you yield for a moment, Mr. Conyers? 

Mr. Conyers. No, thanks. [Laughter.] 

No, thanks. 

And what is the problem here, because I want to go along with 
the program here. I'm in the minority now. I'm really learning 
what that's all about. 



413 

And what is happening is that I find that you fellows keep harp- 
ing on our conscience and sense of fairness and where all this is 
going, and it's a little bit disturbing. I mean, this party was just 
about sealed, signed, and delivered, and now we've got to go in and 
try to untangle your arguments of fairness and conscience. We're 
going to put a big job, a big responsibility on this committee; I can 
tell you that. I don't know how we're going to be able to handle it. 

And I am, frankly, worried. Maybe we need to go back into this. 
Now I'm a late bloomer to the subcommittee, and I'm a late mem- 
ber of the major sponsors on the bill here, and you're creating some 
awful problems. You've raised issues here. I mean, couldn't you 
have just submitted your testimony in writing maybe and we would 
have filed it away and it would have been put in — Bill, you know 
where they go in the Judiciary Committee. [Laughter.! 

And we would have written you letters back thanking you very 
much, and we'd be having lunch about now and I wouldn't be hav- 
ing to decline to recognize my dear colleague from Ohio. 

So, I mean, what — who are you guys really? I mean, what's your 
purpose here today? I mean, are you going to set the intellectual 
property industry on its ears with this kind of talk going on in this 
room? Are you going to turn away the trade balance that we've 
carefully nurtured through the film industry and others? I mean, 
it's one of the few things we can hold up with pride. So what's hap- 
pening? 

Mr. Patry. Mr. Conyers, I think the fixes to this bill are very 
easy. You give the cop3n'ight directly to the author. The Constitu- 
tion and public policy says you give it to authors, I'd say it's a rath- 
er sad day when we have to entertain the thought, however amus- 
ingly, that we're going to set the system on its head by protecting 
the very people the Constitution says should be benefited. Every- 
one gets up and you have wonderful testimony about how great 
creators are and how we love everyone's music, and I do, too, but 
guess what? When it gets down to dividing up the money, we're 
going to say the sanctity of a contract written in 1930 means a lot 
more than what the Constitution says, and what good public policy 
dictated in 1995. I think if you're going to say, "Oh, no, we're not 
going to take the time to do what's the right thing to do," then 
that's a big problem. 

Mr. Conyers. Professor Karjala. 

Mr. Karjala. Thank you. I think I agree with Bill Patry on this 
question insofar as this bill is being presented as it's a benefit to 
authors. It isn't. And if you want to benefit authors from the 
twenties, thirties, forties, and fifties, you should follow his sugges- 
tion. 

But, more generally, I would suggest that in doing so we not turn 
intellectual property law on its head. I'm suggesting that we keep 
what has worked so very well in the past. We have a very success- 
ful balance between private and public interests, between the pay- 
ment to past authors and the encouragement to future authors, 
and we want to make sure we don't upset that balance. 

I'm sympathetic to the views we heard from Mr. Jones this morn- 
ing, and if we can find a way to ameliorate some of the bad effects 
of those contracts written in those years, I would certainly be 
happy to consider it, but what I seriously worry about, the hin- 



23-267 96-14 



414 

drance, the negative effects of this extension legislation on new au- 
thors, both large and small, but especially small, whom we count 
on to keep this export engineer rolling. 

Mr. Belton. If you — ^you were about to recognize me maybe? 

I think it might be impractical to try to redress the errors of a 
culture from this vantage point, but I think one of the things you 
could focus on is whether or not you want to extend copyright term 
for works made for hire because that would, then, at least put an 
end to whatever inequities may be part of that system, and that 
is a very minor change and it also does not violate conformity with 
your present agreement. 

Mr. CONYERS. Thank you. 

Mr. Reichman. What makes our provision the most generous in 
the world is that works for hire last 75 years. As I said earlier, the 
norm is 50. I would agree that there's no reason at all to change 
the current term of 75 years. I agree completely with Bill that if 
you are impressed by the testimony of people like Quincy Jones, 
the important thing is that artists, not publishers, get the money. 

And when people came in here this morning and said this is not 
a very complicated question, that was not true. This is one of the 
most complicated issues that I've looked at in a long time, and I 
specialize in very complicated issues. It is not simple. [Laughter.] 

It is not simple. And when people say that it's simple, there's 
usually a hidden motive for doing that. 

Second, be careful about trade balances. We in the United States 
have a tendency to try to rig international law for short-term ad- 
vantages and then get hit over the head by the long-term disadvan- 
tages. I used to teach international law, and there are examples of 
this piled up all over. The developing countries used to do that too, 
but they learned to be more cautious. They extended their shore- 
lines, the offshore rights, exclusive rights, by 200 miles, thinking, 
ah, that will really fix things, and then what did they find out? 
They can't exploit their own zones very well, and they can't reach 
distant waters; but developed countries can exploit their own 200- 
mile zones and the most distant waters. So, when you start fooling 
with international law for short-term benefits, then you're locked 
in. Everybody's been thinking about the wonderful short-term ad- 
vantages of the TRIPS Agreement; no one is worrying about na- 
tional treatment and MFN, which are now universal norms. 

Cop)nnght law is a kind of lottery, and it's a wonderful kind of 
lottery because it doesn't limit the number of winners. If we have 
some winners, that doesn't preclude there being winners in Aus- 
tralia, winners in Malaysia, winners in Latin America, winners in 
Africa. And I have to tell you that the rate of innovation at the mo- 
ment is about five times higher in Indonesia, Malaysia, and Thai- 
land than it is right here, and I have documented evidence of that. 

So I get very nervous when our trade representatives, captured 
temporarily by certain oligopolies, want us to believe that the mar- 
ket we see today is the world for all time. I recall that the United 
States, only a few decades ago, controlled 70 percent of the world 
market for general purpose machine tools. The United States is 
now a net importer of general purpose machine tools. It's an ex- 
porter of special purpose machine tools known as computer pro- 



415 

grams. That is not going to last forever. Other countries are pretty 
clever. They're pretty good. They've got good design. 

Mr. CONYERS. I remember when we used to laugh at Japan's 
work 

Mr. Reichman. That's right. That's right. 

Mr. CONYERS. It was a big joke. 

Mr. Reichman. So it's important to find a balance that's fair, 
that's good for the international market. If it's good for the market 
as a whole, then we will get our share because we're good competi- 
tors. If it's tipped too far in our favor temporarily, when the other 
guys get good, we'll have to pay them tribute for as long as na- 
tional treatment requires us to do that. 

Mr. Co^fYERS. Mr. Chairman, you've been very generous with 
time. 

And I want to — I suppose I should thank you gentlemen about 
this, but I should thank Carlos for calling all of you. You know 
what he could have done if we want to be clever? We call one of 
you guys and then we all gang up on you, and this never gets in 
the record. 

But he's a fair Republican chairman. Take note of that. He al- 
lows me to go over time and only whispers to me that my time has 
run out. [Laughter.] 

So, you know, this is a wonderful hearing and I'm glad that you 
were able to present your views, and I thank you very much. 

Mr. MoORHEAD. The gentleman from Ohio, Mr. Hoke. 

Mr. Hoke. Thank you, Mr. Chairman. 

I agree that this is not a simple area of the law; that's for sure. 
I have to express some disappointment with my friend and col- 
league from Michigan, that either through paranoia or fear of what 
I was going to ask, he didn't find it possible to yield me time for 
a question. 

But the question that I wanted to pose — and I'm sorry that Mr. 
Jones is no longer here — is it seems to me that, according to his 
testimony, he was under the impression, or is under the impres- 
sion, continues to be under the impression, that this bill actually 
extends the 20 years of additional benefit, this new property that 
we are creating, that that new property is actually bestowed upon 
the author, not upon the current copyright holder. And I don't, ob- 
viously, have the transcript of the testimony yet — and Mr. Jones 
isn't here to testify again for us, but that was the clear impression 
that I got from his testimony. Can anybody either confirm that or — 
yes? 

Mr. Patry. Of course, I couldn't confirm what he 

Mr. Hoke. Just what your recollection of it was. 

Mr. Patry. I wouldn't characterize it one way or the other. I 
think a fair question would be 

Mr. Hoke. Well, can anyone else on the panel? I mean, I was 
under the clear — I clearly was under the impression that Mr. Jones 
believed that this new property benefit would go to the authors. 

Mr. MoORHEAD. He has his own production company. 

Mr. HOKE. No, but he was talking about — he named jazz artists 
from the twenties and thirties that have made — that have written 
two or three or four songs, and upon whose family — or whose fami- 
lies depend upon the royalty. 



416 

Mr. Karjala. As I listened to him, it appeared that he was as- 
suming that the author still held the copyright, and I think much 
of his testimony was predicated on that. I certainly assumed that 
he still held all the copyrights to his works. I don't think he actu- 
ally said one way or the other, but that was my assumption on the 
basis of his testimony. 

Mr. Hoke. All right, well, in any event, I've got a couple of areas 
that I'd like to look into with respect to this. 

Professor Karjala, I'm trying to get a handle on exactly what 
your complaint is with respect to the extension and outside of this 
other issue that has come to light through other testimony, and it 
seems to me — and I'm going to ask you to recharacterize this be- 
cause I don't want to put words in your mouth, but it seems to me 
that you had two basic complaints about it or objections to it. One 
is that you believe that material in the public domain is the source 
of inspiration for new material, and the other is I got the idea that 
you had some sort of a general dissatisfaction with the notion of 
creating welfare system for authors' estates or children. Am I — 
maybe you could recharacterize that. 

Mr. Karjala. Well, yes. I apologize for not saying it as clearly 
as I'm sure is possible. I may not even be any more successful. 

I think the point, my basic point was that our current system, 
and our very successful system, has always been predicated 

Mr. Hoke. The old way is always the best way kind of an argu- 
ment? 

Mr. Karjala. No, no, no. Well, it's been very successful and I 
think we should be careful about changing something that's been 
very successful. I don't say that the old way is always the best way, 
but we have a long history of carefully balancing both sides, and 
nobody who works in this field I think disagrees that there is a 
public interest involved in granting 

Mr. Hoke. What are the bad things that are going to happen if 
we extend it 20 years? That's what I'm trying to determine. And 
is there something bad other than not having more 

Mr. Karjala. The bad things are two. 

Mr. Hoke [continuing]. Public domain material? 

Mr. Karjala. No. 1, there's a cost to the public. Contrary to the 
example that Mr. Jones gave this morning, he gave a Tolstoy book 
and a 

Mr. Hoke. John Grisham. 

Mr. Karjala [continuing]. John — what's his name? 

Mr. Hoke. Grisham. 

Mr. Karjala. Right. Sure, a Tolstoy book may sell, I don't know, 
1,000, 5,000 copies a year; a Grisham book sells millions of copies. 
It may well be that you have to charge that kind of a price for a 
Tolstoy book just to cover the fixed cost of production. It may be 
that if Tolstoy were not in the public domain, it wouldn't get pub- 
lished at all. I don't think the fact that they sell at the same price 
necessarily means the public isn't paying a royalty. 

When a royalty is flowing to the publisher or to the author, 
somebody's paying that. Now Representative Schroeder asked some 
questions this morning: Was the market working or not? I see no 
reason, no evidence to say that the market, the free market, does 
not work for copyright-protected works. If you do believe that the 



417 

market is working in this country, then it necessarily means the 
public is paying these extra royalties 

Mr. Hoke. Excuse me. I'm going to run out of time. 

I want to know what — I still don't see where the objection is, 
though, to the extension to the 20 years on this. What's the specific 
objection? 

Mr. Karjala. Well, that's an additional public cost with no pub- 
lic benefit. 

Mr. Hoke. OK, we had testimony earlier that cost is de minimis 
on a per-unit basis. 

Mr. Karjala. That's right, and I'm — my first point is that I don't 
accept that testimony. 

Mr. Hoke. Oh. 

Mr. Karjala. I think it's factually wrong. We ought to have a 
study of that cost before we push ahead. That's the first point. 

The second point I think is a much higher cost. The money, the 
royalties that flow into the hands of the copyright owners whose 
copyrights would be extended is only a small part of the total cost 
paid by the public because of the way we tie up the hands of new 
creators who aren't able to take things that would have otherwise 
been in the public domain and create new works. Mr. Belton gave 
a number of examples of derivative works that are based on public 
domain works. I have offered some more examples in my own writ- 
ten testimony. 

And so to the extent that we tie up the hands of these unknown 
creators — we don't know who they are or where they'll be in the fu- 
ture — we take a serious risk of losing whatever they would other- 
wise have created. The system is now carefully balanced to encour- 
age these people to produce. Therefore, to the extent that the ex- 
tension does not provide new incentives for production — and I 
didn't hear any testimony even suggesting that it provides in- 
creased incentives — we have a public cost, a risk of a serious lost 
in creation of new works, with no public benefit. That's what's 
wrong with this legislation. 

Mr. Hoke. I want to make a couple of observations and then ask 
one other question, if I could, Mr. Chairman. All right. 

There's been a lot of talk about what the justification is for creat- 
ing the copyright law or the copyright asset in the first place, the 
protection. And Mr. Jones testified that he thought this would cre- 
ate, by extending the length of the term another 20 years, that this 
would create an additional incentive, and I suppose that's part of 
what you could call the fundamental incentive theory. I personally 
think that that theory doesn't hold up very well except for a very 
short period of time. I think that there clearly has to be a short 
period of protected time with respect to creating an incentive to go 
to the things that you, Professor, were discussing, and I think it's 
very important at the period of inception. 

But I think if you rely intellectually on that incentive theory to 
the prop for which you're going to justify copyright law, you're 
going to run into a real problem because, frankly, you've got to 
come up with a much more compelling reason for giving that right 
in the future. I don't have a hard time coming up with that compel- 
ling reason. That is that there is a value to intangible property 
which is intellectually created, which is unique, and which is very 



418 

special. And, therefore, you're saying that talent, and the fruit of 
talent specifically, shall be protected and it's value will be protected 
by these laws. 

Now when you start to analyze it from that perspective, I think 
that — first of all, I think it's much more accurate because you're 
trying to describe human — or you're trying to describe nature more 
accurately, but I think, more importantly, it also begins to show 
you how much more complex this is than simply creating a right, 
a property right based on an incentive theory. 

What happens, then, when you start to deal with these complex- 
ities — and this is where I want to get to my question — is that you 
realize that there really are, in fact, fairly profound distinctions be- 
tween different kinds of intellectual property that's being created. 
There's a distinction between musical property, performance of — 
I'm sorry, musical property, between that and an image that is cre- 
ated, between that and literature, and then, finally, between that 
and what we are calling works made for hire, although the dif- 
ference there is more one of an economic distinction. 

But I wonder if you have given thought to, and if we ought to 
be thinking at this level, about the direction that we should be 
going ultimately in these things, or maybe not ultimately, but as 
we progress as a nation, with respect to first, drawing these dis- 
tinctions and second, recognizing that perhaps the reproduction of 
a work in literature, let us say, in a verbatim way, in a perfect re- 
production, ought to be treated differently with respect to copyright 
law as the use of it in a much more derivative fashion, and that 
one ought to be protected in a way that is different from the other. 

And at what point, without, clearly, wanting to get into the busi- 
ness of micromanaging these problems and these complexities, but 
at what point should and could and may the U.S. Congress get in- 
volved in thinking about dealing with these complexities in a way 
that more accurately comports with real life, with nature? Profes- 
sor? 

Mr. Reichman. I think you raise a capital point, and I just wish 
to add something to your list of things that might not be the same, 
even though the copyright law makes them look the same. I would 
like you to have added computer programs and electronic informa- 
tion tools in general. 

What we're doing is stretching the copyright law to cover defects 
of the 19th century copyright paradigm and to the 19th century 
patent paradigm which just don't work very well for the 2 1st cen- 
tury technologies in which we happen to excel. I believe that your 
question leads to this: I would urge the Congress to consider the 
need for a proper innovation law, a proper innovation law that 
would deal particularly with subpatentable, noncopyrightable inno- 
vations. As regards computer programs, the courts have done ex- 
actly what we predicted they would do; the valuable parts of com- 
puter programs are not really protected in copyright law at all. 
Copyright law just keeps you from making a slavish imitation. 

We need an innovation law, and my recent work has raised the 
question of whether we need one based on exclusive property rights 
under the models of the 19th century or whether we need one 
based on liability principles, which I believe would elevate invest- 
ment in subpatentable innovation of all kinds without creating new 



419 

barriers to entry and without putting at risk our longrun creativity, 
I discuss a default liability regime for incremental innovation in 
my article, "Legal Hybrids Between the Patent and Copyright 
Paradigms," which appeared in the December 1994 issue of the Co- 
lumbia Law Review. But you're opening a whole new can of worms. 
Without going that far, your observations do raise questions about 
whether existing rights are going to work in multimedia, and 
whether these existing rights are going to work in a digitalized age 
on the Internet. And I believe that a congressional investigation of 
an innovation law that, a priori, said we are not going to be bound 
necessarily by these old paradigms would be very useful for all of 
these purposes. I don't think any premature action should be 
taken, but if we don't start the ball rolling what's going to happen 
is that we're going to be inundated by bad European directives 
after another. 

This morning we heard about the database directive. I believe 
the pending EC data base directive was already appalling in its 
second incarnation, the second amended proposal, but the one good 
thing it had was a compulsory license for sole source publishing 
where you really had a 100-percent monopoly. Now, however, the 
Commission has eliminated even the compulsory license for sole 
source monopolies, and the staff is saying privately, well, we had 
to do it, we know it's wrong. So if we don't start taking now and 
begin a study of what is the appropriate innovation policy and law 
for the United States, we're going to end up hearing again and 
again endless testimony in which our officials come in and say, 
well, Europe did it, so we have to do it, too. If Europe wants to get 
itself into a position where it is technologically monopolized, and 
thereby, in my view, becomes progressively uncompetitive with re- 
spect to those emerging markets in Asia, that's their business, but 
no one will convince me that that is good policy for the United 
States. 

Mr. Hoke. I want to finish with one final thought, and that is 
that I think it's clear that we are creating with this bill new wealth 
that doesn't exist today. We're creating money, capital, wealth, 
property that doesn't exist, and we're creating a lot of it. And I 
want to be clearly on the record that it is — I have no interest in 
creating new wealth for other than the creators, that that is the 
talent, the creators of the property itself. 

And my personal background is as a musician. I've always con- 
sidered myself to be a musician first before a lawyer or a business 
person or a Member of Congress. And it seems to me that because 
both my own personal feelings about this and also because I know 
what — I know very profoundly and deeply what the value is and 
what the uniqueness is of the creative process, that when we, the 
Congress, create new property out of old cloth that did not exist be- 
fore, that property should be created for the benefit of those people 
who made it in the first place. 

Thank you, Mr. Chairman. 

Mr. MOORHEAD. Thank you very much. I have just a couple of 
questions I wanted to ask. 

Mr. CONYERS. Mr. Chairman, I noticed that Professor Karjala 
was hoping to get an interjection in. 

Mr. MoORHEAD. Do you have something you wanted to say? 



420 

Mr. Karjala. Well, Mr. Hoke started off with a question that 
started off more or less addressed to me. I was going to make a 
quick response. 

Mr. MOORHEAD. Go ahead. 

Mr. Karjala. Mr. Hoke said that we had abandoned, or he per- 
sonally at least had abandoned, the incentive theory, as the current 
term is already, if I understood him correctly, too long. I'm not here 
arguing against the current term. There are lots of reasons why we 
adopted the current term and lots of arguments against it, but I 
do think it's important to focus on this bill, which effects a further 
extension of the copyright period. As Professor Reichman said, 
there are many ways we might consider how to promote and stimu- 
late innovation in the 21st century, and I think that's going to be 
a continuing topic. Some of us may be back talking with some of 
you in the future on that. But on the limited topic of this extension, 
I think we should have a clean reason in mind of why are we going 
forward. What is going to be the benefit from this extension? And 
if it's not going to be an incentive to the creation of new valuable 
works, what is it? I haven't heard anything. 

Mr. Hoke. Well, what I — just if I may respond very briefly, Mr. 
Chairman — it is because that property that was created, that intel- 
lectual property has value, and we're saying it used to only have 
the value of the life-plus-50; now it will have the value of the life- 
plus-70. As you heard, I raised the question as to why life-plus-70. 
I mean, I think these are arbitrary numbers. I thought that my col- 
league from Virginia's reasons for not making it in perpetuity were 
novel, but probably not as persuasive as the reasons that you don't 
want to make a perpetual right because, in fact, at some point you 
do chill the use of that information. But I don't think there's any- 
thing magical about life-plus-70 or life-plus-50, but I think it's a 
sham to try to hang on the theory that we're creating incentives. 

Now Mr. Jones and nobody that's writing music today is going 
to be having a greater incentive because they've got an extra 20 
years of copjrright for their heirs. That's ridiculous and we ought 
not to engage in that kind of intellectual buffoonery. But I do think 
it's very easy to justify the additional time by saying, look, this was 
valuable when it was created and it's purely arbitrary that we're 
saying it's no longer valuable at the end of 50 years past the death 
of an author. So that's the reason. 

Mr. MoORHEAD. Well, thank you. 

I just had one question here I wanted to ask. I understand that 
an amendment of mine is being offered by somebody else because 
I'm not there in one of the other committees. 

But this is a complicated area; there's no question about it. And 
the rights are balanced in a number of different directions. There's 
no question but what conditions have changed. The average motion 
picture now, if you put it on the market, unless it reaches $50 mil- 
lion, it's going to lose money, at least in the whole market. A lot 
of their hope for profit usually rests in what may be sold years 
later in European markets or wherever. 

One reason for raising the amount of money that goes for works 
made for hire is that in Europe they have a little different system 
than we have, but I think it was pointed out by Ambassador 
Barshefsky — she said that the reason for extending the copyright 



421 

for made-to-hire works was to benefit directors of U.S. films in Eu- 
rope by bringing the amount of protection they receive closer to 
that received by European directors. They have a split between the 
company that owns, that may own the picture, and the directors 
of the film, so that both receive some of the money. 

If we extend the made for hire amount, the 95,000, the directors 
will get a much larger share of that money under the European 
system in Europe, and that was the point that she was making for 
us when you heard the earlier testimony, and that was a reason 
that was given for that change. 

Would you like to comment on that? 

Mr. Belton. I probably am not the right person to talk about it. 
You're saying that whatever contracts a director has with a studio 
in the United States will be ignored by a European exhibitor who 
will decide that the director and the cinematographer, and so and 
so, should receive royalties? 

Mr. MOORHEAD. The Europeans' money — in Europe the money 
received will depend upon their determination of how they made 
those splits, and the director, as I understand it, shares with the 
holder of the copyright. In other words, he has a copyright protec- 
tion also. We don't do that here in the United States. 

But they will not — we have an agreement where — with other 
countries, and they give our people the protections or at least the 
amount of money that they would be able to get in the United 
States. With the pot being shifted, it becomes larger for them or 
it lasts longer. 

Mr. Belton. So that the Europeans are giving artist protections 
we do not give them. 

Mr. MoORHEAD. That's right. 

Mr. Belton. And this is wonderful, but I don't think it's the rea- 
son for — 

Mr. MoORHEAD. No, but they will — our directors will share in 
that increase in the 75,000. That's what I'm told; that's what she 
said here in her testimony. 

Mr. Belton. I know that American directors have certain rights. 
I don't know that they have commercial or financial rights. 

Mr. MOORHEAD. I think she's in a better position to give that in- 
formation that anybody else. 

Mr. Reichman. That is possible. If the director — the European 
law recognizes not only the director, it recognizes the screenwriter, 
the musical composer, and one other person. 

Mr. Belton. The cinematographer. 

Mr. Reichman. And, actually, the copyright will last until the 
last of the four of those dies. This is the copyright as distinct from 
the related right, which they give to the producer. So it is possible 
that if our director, as director, obtained moreover, it would make 
it harder to give him less under the rule of the shorter term, if 
they're applying it to the director as such. It's not clear to me ex- 
actly how they will mesh the director under the new directive; that 
is, will they do that and give him 95 or will they continue to say 
it's just a work made for hire; we'll give you 70? I'm not 100 per- 
cent sure. 

Mr. MOORHEAD. Well, she's been telling us that they would bene- 
fit from that increase. 



422 

Mr. Reichman. They cut it down to 95. 

Mr. MOORHEAD. That's what we heard in her testimony that she 
gave. 

Mr. Reichman. Well, I think there's a substantial chance that 
that would be the case, that the director would get 95 — would get 
another 20 years. 

Mr. MooRHEAD. So that's the reason for the 

Mr. Reichman. The producer would not, of course. The producer 
would continue to get 50 years. 

Mr. Karjala. May I just interject briefly? It's not clear that the 
director would get anything. We would measure the term by the di- 
rector's life, but if the director has assigned his right, if he had any 
rights and has assigned them to the movie company, the director 
is not going to get anything anyway. 

Mr. MoORHEAD. They — ^Europe does it differently in the split of 
the benefits, and the director shares over there, even Americans, 
and that would help that. At least that's what I heard in the testi- 
mony that was given. 

John, do you have anything else that you want to ask? 

Mr. CONYERS. No, Mr. Chairman, I'm totally exhausted by this 
panel and the comments that have gone back and forward for the 
last hour and a half. Thank you very much for asking. 

Mr. MoORHEAD. Thank you very much for coming. 

Mr. Reichman. Thank you for inviting us. Thank you very, very 
much. 

Mr. MOORHEAD. The subcommittee is adjourned. 

[Whereupon, at 1:32 p.m., the subcommittee adjourned.] 



APPENDIX 



Material Submitted for the Hearings 



Redefining Film Preservation 
A National Plan 



Recommendations of the 
Librarian of Congress 

in consultation with the 

National Film Preservation Board 



Library of Congress 
Washington, D.C. 
August 1994 



(423) 



424 



Preface 



By James H. Billington This year, film is one hundred years old. Throughout its history. 
Librarian of Congress film has been a powerful force in American culture and national life, 
often shaping our very notion of contemporary events. Our challenge 
now is to appreciate its fullness and diversity and to protect our rich 
heritage for the study and enjoyment of future generations. 

With the passage of the 1992 National Film Preservation Act, 
Congress recognized the strong national interest in preserving motion 
pictures as an art form and a record of our times. This landmark 
legislation directed the Library in consultation with my advisory 
group, the National Film Preservation Board, to conduct a national 
study on the state of American film preservation and to design an 
effective program to improve current practices and to coordinate 
preservation efforts among studios and archives. 

The report, submitted to Congress in June 1993, documented a film 
heritage at-risk. Of America's feature films of the 1920s fewer than 
20% survive; and for the 1910s, the survival rate falls to half that. 
But what is even more alarming is that motion pictures, both old and 
new, face inevitable destruction-old films from nitrate deterioration 
and newer films from color fading and the "vinegar syndrome." 
Only by storing films in low-temperature and low-humidity 
environments can nature's decay processes be slowed. The majority 
of American films, from newsreels to avant-garde works, do not 
receive this type of care and are in critical need of preservation. 

While it is difficult to diagnose problems, it is even more difficult to 
solve them. In the field of film preservation, there has not been a 
history of coordination: Archives and studios have too often worked 
in isolation, duplicating one another's efforts. 

The Library and National Film Preservation Board saw the 
importance of bringing a fresh approach to these problems. We 
called upon the field to set aside old differences, share ideas, and 
work together in developing a coordinated national strategy. Film 
preservationists rose to the challenge. Over the past six months, 
representatives across the film community-from the motion picture 
studios, nonprofit and public archives, repertory theaters, 
laboratories, universities, and the creative community -have 
participated in the planning process. 



The tangible product of their work is this document. Redefining Film 
Preservation: A National Plan outlines basic steps that must be taken 
to save American films and make them more accessible to the public. 



425 



Greater public-private partnership is the central theme of the plan. In 
this age of shrinking federal resources, we need private support to 
achieve broad public goals and a national framework in which 
partnerships can be encouraged. I urge Congress to act upon our 
proposal for a new federally chartered foundation dedicated to the 
cause of film preservation and access. Federal matching funds are a 
vital part of the funding structure; they act as an incentive to 
corporate, foundation, and individual donors to provide seed money 
for public preservation investment. We need these combined public- 
private funds to put new ideas into action. To redefine film 
preservation, we must redefine relationships among archives, the 
entertainment industry, the educational community and the general 
public and find ways to forge a broadly beneficial program. 

The less tangible, but equally important, product of the planning 
process is the spirit of cooperation that has developed within the film 
community. In this spirit we must move ahead. The Library and the 
National Film Preservation Board look forward to continuing our role 
as facilitators and to guiding implementation of the national film 
preservation plan. 



July 25, 1994 



Redefining Film Preservation 



Preface 



426 



By Fay Kanin 
Chair, National Film 
Preservation Board 



The National Film Preservation Board, the advisory group to the 
Librarian of Congress, brings together representatives of major 
organizations in the film community. Created by Congress in 1988, 
the Board has as its initial mission the recommendation of motion 
pictures for inclusion in the National Film Registry. Each year we 
advise the Librarian on titles exemplifying the diversity and richness 
of American film production. Our purpose is not to single out the 
"best" or the "most popular" films but to honor those of lasting 
cultural, historical or artistic distinction. In recent years the additions 
to the National Film Registry have showcased cartoons, 
documentaries, newsreels, and the avant garde as well as Hollywood 
and independent features. By publicizing these films and acquiring 
copies for study at the Library of Congress, the Librarian draws 
attention to historically significant films and to the public importance 
of film preservation. 



Over the last two years, the Board has become prominent in national 
efforts to coordinate and improve American film preservation. In 
1993 we conducted public hearings, gave interviews, contributed 
written statements, and recruited colleagues to participate in the 
Librarian's fact-finding study. This year we have taken an even 
more active role. We chaired the planning groups and formed a 
special committee to investigate ways to increase funding for the 
preservation work of public archives. We advised the Librarian on 
the final plan. 

Solving America's film preservation problems is beyond the resources 
of any single institution. While many of us have furthered the cause 
of film preservation within our own organizations, it is through the 
Board that we have a structure for collaborative action. By 
harnessing the support of the entire film community-writers, 
directors, actors, cinematographers, craftspeople, theater owners, 
archivists, educators, broadcasters, and studio executives~we can 
make a lasting contribution to film preservation. 

The Board has been honored to advise the Librarian of Congress on 
promoting interest in film and its preservation. We will continue our 
support as we assist the Librarian in putting the national film 
preservation plan into practice. 



July 25, 1994 



427 



The National Film Academy of Motion Picture Arts and Sciences: Fay Kanin 

Preservation Board Alliance of Motion Picture and Television Producers: J. Nicholas 

Counter III, Carol Lombardini (Alternate) 
American Film Institute: John Ptak, Jill Sackler (Alternate) 

American Society of Cinematographers and International 

Photographers Guild: Allen Daviau, William A. Fraker 

(Alternate) 
Directors Guild of America: Arthur Hiller, Martin Scorsese 

(Alternate) 
International Federation of Film Archives, United States: Mary Lea 

Bandy, Museum of Modern Art; Jonas Mekas, Anthology Film 

Archives (Alternate) 
Motion Picture Association of America: Jack Valenti, Matthew 

Gerson (Alternate) 
National Association of Broadcasters: Edward O. Fritts, Stephen 

Jacobs (Alternate) 
National Association of Theater Owners: Theodore Pedas, William F. 

Kartozian (Alternate) 
National Society of Film Critics: David Kehr, Julie Salamon 

(Alternate) 
New York University, Department of Film and Television: William 

Everson, William Paul (Alternate) 
Screen Actors Guild of America: Roddy McDowall, Barry Gordon 

(Alternate) 
Society for Cinema Studies: John Belton, Lucy Fischer (Alternate) 
University Film and Video Association: Ben Levin, Peter Rainer 

(Alternate) 
University of California, Los Angeles, Department of Theater, Film 

and Television: Robert Rosen, Teshome Gabriel (Alternate) 
Writers Guild of America: Jay Presson Allen, EAST; Del Reisman, 

WEST (Alternate) 
At-Large Member: Roger Mayer, Turner Entertainment; Milt 

Shefter, Miljoy Enterprises (Alternate) 
At-Large Member: John Singleton, New Deal Productions; Janet 

Staiger, University of Texas, Austin (Alternate) 



xii Redefining Film Preservation 



428 



Executive Summary 



Redefining Film Preservation is an action plan to save America's 
motion picture heritage. Concluding a two-part process mandated by 
the National Film Preservation Act of 1992, it builds from the study 
Film Preservation 1993, submitted to Congress last year, and presents 
recommendations by the Librarian of Congress and his advisory 
National Film Preservation Board. The plan integrates agreements by 
five working groups of archivists, educators, filmmakers, industry 
executives, and other participants in the earlier fact-finding study. 

Storage. The plan singles out low-temperature, low-humidity storage 
as key to a balanced preservation strategy. New electronic technol- 
ogies hold promise, particularly for access, but retaining film on film 
remains necessary for long-term preservation. To assure archival 
copying quality, the plan recommends creating a group to review 
laboratory preservation work and establishing technical guidelines. 

Access. Film preservation also involves questions of private 
ownership and public access. To expand educational access, the plan 
recommends simplifying rights clearances, clarifying archival photo- 
duplication policies, creating resource guides, and experimenting with 
remote delivery systems for public domain films in archives. The 
plan also presents options to foster the theatrical film-viewing 
experience. The National Film Registry Tour, which will exhibit 
selected Registry titles across the country beginning in 1995, will be 
a step toward this goal and the centerpiece of an outreach campaign. 

Partnerships. Public-private cooperation is critical to the plan. 
Major studios have primary responsibility for preserving their 
products but collaboration makes sense for many areas, including 
restoring key titles, pooling preservation information, discussing 
technical issues, sharing storage costs, and repatriating "lost" 
American films held in foreign archives. The principal public 
responsibility is for "orphan" films, works without clearly defined 
owners or immediate commercial potential. These include newsreels, 
documentaries, independent films, and significant amateur footage. 

Funding. Federal preservation copying grant programs, although 
important, lack the scope and funding to address the current problem. 
The plan advocates a federally chartered foundation to raise funds for 
the preservation of orphan films and to encourage their storage, 
copying, cataloging, access, and exhibition. Affiliated with the 
Board, the foundation would secure private partners for broad-based 
initiatives and be eligible to match donations with federal funds. 

The Librarian of Congress and the National Film Preservation Board 
are committed to furthering the national preservation program and 
invite written comment on implementation strategies. ' - 



429 



1. Building a National Plan 



This document is an action plan to save America's film heritage for 
future generations. Recognizing film as an important cultural 
resource, the National Film Preservation Act of 1992' directed the 
Librarian of Congress and his advisory panel, the National Film 
Preservation Board, to rethink how American film preservation is 
practiced. Over the following year, the Librarian and the Board 
conducted a nationwide study to document the current state of 
American film preservation. Over 100 experts from the film 
industry, public and nonprofit archives,' and the educational 
community contributed information through public testimony, 
interviews and written comment. Film Preservation 1993, a four- 
volume study submitted to Congress that July, reports the findings.' 



The key conclusion of Film Preservation 1993 is that motion pictures 
of all types are deteriorating faster than archives can preserve them. 
Film is a fragile medium, intended for brief commercial life; 
preservation aims at slowing its inevitable decay through 
environmentally controlled storage and duplication onto newer 
filmstock. But film preservation involves more than extending the 
physical life of film. It also involves questions of ownership and 
access. Films made by American motion picture companies and 
independent filmmakers are privately owned but publicly experienced. 
Indeed, for most films in public collections, copyright remains with 
the donors, depositors or creators. A national plan must recognize, 
balance and integrate the interests of film owners and film users. 

Redefining Film Preservation: A National Plan builds upon the earlier 
study. The plan outlines recommendations to improve the state of 
American film preservation over the next five years, especially by 
fostering better coordination among archives, the motion picture 
industry, independent filmmakers, the educational community, and 
others concerned with the survival and accessibility of American film. 

This national plan is a collaborative work. It is constructed in the 
belief that only through the efforts of the entire film community and 
the support of the public can significant progress be made to save 
American film. In this spirit, the plan unites the ideas of four task 
forces and a special National Film Preservation Board committee 
appointed by the Librarian of Congress to develop solutions to the 
issues raised in Film Preservation 1993. Representing a cross-section 
of the participants in die earlier study, each planning group brought 
diverse points of view to a single issue area: physical preservation, 



Building a National Plan 



430 



access, public outreach, funding, and preservation partnerships 
among studios, filmmakers and archives. The recommendations 
reflect the collective agreements hammered out by each group. Some 
difficult points, of course, remain to be resolved but the parties have 
listened to each others' arguments and looked for common ground. 

It is useful to describe how the task forces worked. With members 
scattered across the country, the groups exchanged ideas largely by 
conference call and collaborative papers. (Four of the more polished 
documents are included as part of this publication.) The task forces 
met face-to-face in late May and reached consensus on the issues 
discussed over the previous four months. In June each task force 
reviewed its final recommendations. A Board member chairing each 
group served throughout the process as the communication link with 
the National Film Preservation Board. In July 1994, the Librarian 
met with the Board to discuss and refine the final written plan. The 
overall process was coordinated by two outside consultants, who 
assembled the recommendations of the five groups into the following 
document. 



1. Public Law 102-307 (June 26, 1992), Title II, Sec. 203; codified as 
2U.S.C. 179. 

2. "Public archive" is used here, as in Film Preservation 1993, for any public or 
nonprofit repository— library, museum, historical society, university 
collection— committed to the preservation of film. 

3. Film Preservation 1993: A Study of the Current Stale of American Film 
Preservation is available from the U.S. Government Printing Office (phone 
number: 202-783-3238; order number: 030-000-00251-2). The July 1994 
price is $47. 



Redefining Film Preservation 



431 



2. The Changing Context of Film Preservation 



Film Preservation 1993 concluded that American film preservation is 
at a crisis point, notwithstanding the strides made by public archives 
and the film industry. The reasons for this unsettling conclusion are 
complex and reflect three primary changes in the nature of the film 
preservation challenge: (1) new scientific understanding of film 
deterioration, (2) greater public and scholarly interest in diverse types 
of American films, and (3) declining public funding. Given these 
changes, continuing business as usual is no longer possible. 

The goal of this national plan is to rethink film preservation practice 
and to suggest where the most promising opportunities lie. Each of 
these three broad changes has brought huge additional problems to 
preservationists, but the changes are not without certain opportunities. 
Recent scientific knowledge about film deterioration, for instance, 
brings disheartening evidence that extensive deterioration exists not 
simply in volatile pre- 1950 nitrate-base film but in later acetate 
"safety" film as well. And yet, there is equally solid evidence that 
cool-and-dry storage conditions can significantly retard every variety 
of film deterioration. One challenge for the national plan, then, is to 
use this new technical knowledge to advantage. 

Similarly discouraging is the sheer number of films needing 
preservation attention. One common thread in the public testimony 
and written submissions in Film Preservation 1993 is that, with the 
single exception of the Hollywood sound feature, large facets of 
American film production are seriously neglected by current 
preservation efforts, notably the vast majority of newsreels, 
documentaries, independent features, and avant-garde works. The 
demands to suidy and use such records of America's cultural memory 
are bringing added costs and responsibilities to archives. 
Fortunately, there is increasing reason to belidve that the preservation 
of the older Hollywood feature, long the central emphasis among 
large public archives, might be supported by commercial interests, 
allowing public funds to be directed to other film types. With new 
markets for "classic" features, major studios are investing in 
sophisticated storage facilities and in restorations of motion pictures 
for which they own rights. Public archives still have a role in 
ensuring that Hollywood films are available for study and enjoyment, 
but the implications of these broad shifts in responsibility need to be 
incorporated into a national plan. 



The Changing Context of Film Preservation 



432 



The decline in public funding is perhaps the most discouraging 
finding of Film Preservation 1993. Federal support for the 
preservation copying program of the Library of Congress and for the 
National Endowment for the Arts film preservation grants, 
administered by the American Film Institute, has fallen to less than 
half of its 1980 level, adjusted for inflation. Put in terms of the 
laboratory work that federal grant dollars can buy, the decline is even 
more striking: It falls to about one-sixth of the 1980 level. There is 
no easy fix to the funding crisis. And yet, new fiinds to implement 
new ideas must be central to any national plan. In this era of reduced 
federal spending, it would be quixotic simply to recommend an 
increase in direct appropriations commensurate with the problem. 
Instead, this plan proposes a new type of funding strategy based on 
shared public and private responsibilities. 

In the following pages. Redefining Film Preservation takes up each of 
these three broad issues in turn: physical preservation in Part 3, 
public and educational access in Part 4, and funding in Part 5. The 
problems explored here are large ones, but the cooperation displayed 
in the creation of this plan suggests that they need not be insoluble. 



Redefining Film Preservation 



433 
3. Rethinking Physical Preservation 



Film preservation is necessary because of film's unstable chemical 
properties. Most obviously unstable is cellulose nitrate, the support 
base used in virtually all theatrical films produced before 1950. 
Nitrate's dangerous flammability at relatively low temperatures, along 
with its greater age, long made it the almost exclusive focus for 
preservation attention. Decisions have become less simple, however, 
with the growing realization that the cellulose acetate "safety" film 
that replaced nitrate has no greater permanence and degrades at 
essentially the same speed, if with less fire hazard. Further 
complicating the problem is the rapid fading of new "dye-coupler" 
color emulsions that became standard after 1953. 

In casual language and traditional practice, "preservation" has been 
synonymous with duplication. "Has the film been preserved?," a 
question still often asked of archivists, is understood to mean, "Has 
the film been copied onto newer film stock?" Preservation copying 
(during which "preprint" material is made, ideally with little visual or 
aural degradation) remains key for two reasons: Deteriorating older 
works need immediate copying if they are not to join the vast 
numbers of American films already permanently lost, and films need 
copying if they are to be publicly accessible, especially through 
theatrical exhibition. 

Nevertheless, this narrow definition of preservation cannot be 
sustained if there is to be hope of saving more than a fraction of 
American film production. Costs for preserving a single color 
feature by copying can run to $40,000 or more, and the short 
lifespans once thought to be a problem only for nitrate now confront 
nearly all films. There is, however, an additional way to prolong the 
life of film: by storing the original film artifact in such a way that it 
can itself survive. Ongoing research and practical experience 
continue to demonstrate the capacity of low-temperamre, low- 
humidity storage conditions to extend the useftil life of films, 
including those in the early stages of deterioration. 

These scientific fmdings come at a time when historians, students of 
American culture, ethnic communities, and the general public are 
demanding that a fuller range of film production be preserved and 
made available for exhibition and study. Only by redefining the 
approach to physical preservation-by integrating improved storage 
with selective duplication and restoration-will it be possible to save 
these irreplaceable cultural artifacts. The two ways of understanding 



Rethinking Physical Preservation 



434 



physical preservation are not so much opposing as balancing 
philosophies: Proper storage can buy time for a planned restoration 
program and help prevent the need for emergency copying. 

Recommendation 3.1 : Establish the improvement of storage conditions as the 
Storage cornerstone of national film preservation policy and an integral 

part of federal funding programs. By improving storage conditions 
and copying selectively, we can extend the useful life of a greater 
number and variety of films. Costs for the construction of storage 
facilities and their operation are admittedly large, but such 
expenditures nevertheless can maximize each preservation dollar. 
State-of-the-art storage facilities now aim at maintaining films at 
temperatures ranging from 35° to 45° Fahrenheit and at a relative 
humidity between 25% and 45% (depending on the type of film 
material and its intended use), but even small decreases in 
temperature and humidity have been shown to bring substantial 
extensions to film life. Because improving storage environments is a 
less visible and less dramatic solution than the project-oriented 
striking of new prints, it does call for greater foresight and longer- 
range planning among flinders and archivists. 

This balanced approach is used increasingly by motion picture 
companies in their asset protection strategy. Public archives too are 
investing in improved storage, but federal grant programs, for the 
most part, remain designed to fund duplication exclusively. Given 
the importance of proper environmental conditions in extending film 
life, the Librarian of Congress and the National Film Preservation 
Board recommend realigning federal grant programs. Current 
duplication grants should consider the quality of the institutional 
storage environment that will house new preservation copies. 
Similarly, grants to filmmakers should alert creators to the 
preservation needs of their works. Most importantly, federal dollars 
should be used to encourage the upgrading or building of cool-and- 
dry storage facilities. 

The federal government is itself the largest single holder of American 
fiction and nonfiction films. Thus federal repositories should serve 
as exemplars of an approach that balances improved storage with 
selective duplication. Continued funding and support for storage, 
copying, and access in federal institutions will demonstrate the 
national importance of film preservation. 

Recommendation 3.1 is the basis of many that follow, and its 
rationale is laid out more fiilly in the attached Supporting Document 
A, Keeping Cool and Dry: A New Approach in Film Preservation, 



Redefining Film Preservation 



. 435 



Recommendation 3.2 : 
Saving Original Film 



drafted by task force members. The National Film Preservation 
Board plans to distribute this document widely. 

Recognize the importance of saving the original film, even after 
copying, unless it has deteriorated beyond any use. Saving the 
original film artifact remains a basic principle, and one that needs 
underlining in this era of scarce preservation dollars and of new 
electronic technologies that can seem to offer a quick fix. The 
original film has maximum image resolution and sound quality and, if 
stored satisfactorily, can long remain the best source for copies in 
any future format. 

For many years nitrate film was considered discardable after being 
copied onto safety stock, but archives and studios have rethought this 
policy. Even the best current safety-film copies have proven 
incapable of reproducing nitrate film's subtle visual qualities. Except 
when dangerously deteriorated, nitrate should be retained for reuse as 
duplication technology improves, as well as for the color-tinting 
records lost in the black-and-white copies of most silent films. 



IMPROVBVG THE QUALITY OF PRESERVATION COPYING 

To save endangered films and to provide public access, selective 
copying and restoration remain an essential part of a national 
preservation effort. However, preservation copying must be 
measured not only in terms of the quantity of footage copied but also 
in terms of the quality of the laboratory work accomplished. As is 
evident from the testimony in Film Preservation 1993 (and from 
onscreen evidence), much early preservation copying needs to be 
redone, insofar as that is still possible. Laboratory equipment and 
techniques have improved, and knowledge about aging nitrate has 
deepened. Standards that slipped by when 16nim was the major 
television and educational format no longer apply. If films are to 
survive in copies true to the originals, the caliber of archival 
duplication must meet the highest standards. Recommendations 3.3 
through 3.6 address this goal. 



Recommendation 3.3 : 
Archival Laboratory 
Copying 



Under the auspices of the National Film Preservation Board, 
convene a working group to screen and discuss archival-quality 
laboratory duplication work. Currently there are no mechanisms to 
assure nationwide quality for archival duplication. A new working 
group, convened initially by the National Fihn Preservation Board, 
will answer this need. Producers and purchasers of archival services, 
including laboratory, studio, and archive representatives, should come 
together to review visual and sound duplication work in a 
non-confrontational setting. This might build from the annual 



Rethinking Physical Preservation 



436 



Recommendation 3.4 : 
Technical Guidelines 



Recommendation 3.5 : 
Substitutes for 
Harmful Chemicals 



Recommendation 3.6 : 
Sharing Preservation 
Information 



preservation screening hosted by the Association of Moving Image 
Archivists and be arranged in association with other technical and 
archival organizations. The new group might view and discuss a 
blind, random sample of recent preservation work or of specifically 
printed test material. The goal would be to increase communication 
about archival-quality duplication toward making film copies as true 
as possible to the originals. 

Encourage development and acceptance of standardized technical 
guidelines for the laboratory duplication of black-and-white and 
color film of archival quality. It would useful to complement the 
subjective comparisons proposed in Recommendation 3.3 with 
agreed-upon technical guidelines and a common grading system for 
archival-quality copying. The National Film Preservation Board will 
help launch this effort through a survey of U.S. laboratories 
specializing in archival services in order to gather information on 
current practices in specific technical areas (for instance, frame-line 
stability or the exposure and processing of interpositives). Such data 
may point to the value of certain film stock improvements (for 
instance, YCM separations with improved panchromatic emulsions on 
a polyester base). The disputed question of whether archival copying 
onto acetate base should be abandoned in favor of polyester could 
also be productively discussed. 

Encourage the development of substitutes for environmentally 
dangerous chemicals vital for film preservation. Archival-level 
laboratory work depends on quality methods and tools. At least two 
chemicals that may soon be banned in the United States appear 
essential to preservation copying as it is currently practiced. 
1,1,1-trichloroethane, commonly employed for cleaning film, is 
scheduled for a federal environmental ban in 1995; 
perchloroethylene, a known carcinogen used in wetgate printing, may 
soon be added. No satisfactory substitutes have yet been identified 
and, without such chemicals, the quality of preservation copying of 
older American films will suffer. (Cleaning prevents dirt from being 
permanently printed into the copy; wetgate printing makes scratches 
and other flaws less visible in the copy.) Until alternatives are 
found, the National Film Preservation Board, working with national 
technical organizations, plans to seek an environmental exemption 
and to urge development of viable substitutes. 

Lay the groundwork for sharing information on the surviving 
preservation elements of American film titles. A cooperative 
national preservation effort requires the capacity to exchange 
information in all areas. In order to prevent costly and unnecessary 
.replication of preservation copying and to assure that the best 



8 Redefining Film Preservation 



437 



available source materials are used for each title, the film holdings in 
public and commercial archives should be made accessible to 
preservationists in an online environment. We recognize reasonable 
proprietary restraints in making private holdings public but also see 
potential benefits to all parties. 

As a first step, the National Film Preservation Board plans to 
convene a working session for large archives and the appropriate 
studio rightsholders to explore sharing inventories for pre- 1950 
materials. Existing databases should be surveyed for their 
accessibility and usefulness as preservation tools. 

Planning for Future Preservation Technologies 

Electronic technologies are improving with astounding speed. With 
them come great opportunities but also a temptation to find 
preservation panaceas. It is impossible to predict the future, but we 
make the following general recommendation. 

Recommendatjon 3.7 : Encourage a "two-path" approach that (1) actively explores the 
Digital Preservation preservation potential of digital and other copying technologies 

while also remembering that (2) it remains essential to save 
original Films for as long as possible. The distinction between 
digital access and digital preservation is key to the archival role for 
new electronic technologies. These are already transforming film 
access but archives should insist that certain stringent criteria be met 
before new technologies are adopted as preservation media. These 
criteria include: (a) picture and sound quality equal to the original; 
(b) ability to support production of new film elements without 
significant picture or sound loss; (c) an archival longevity (ideally, 
100 years) alongside assurance that playback equipment would be 
available for an extended time; (d) capability to be stored in 
reasonable temperature and humidity conditions; (e) capability to 
record data from the original film needed for restorations (e.g., 
splices, edge codes); and (0 a cost no greater than film-to-film 
copying. 

Even when such a technology is attained, two fundamentals remain. 
A master always holds more information than any reproduction, and 
no matter how faithful, inexpensive, or durable an electronic copy, it 
must be refreshed and reconfigured for use with changing access 
systems. The only thing that seems certain about future electronic 
systems is their rapid obsolescence. Already a central problem in 
video preservation is constructing equipment to play recordings made 
only a few years ago. Notwithstanding unforeseen advances in 
electronic copying and access technologies, film remains the most 

Rethinking Physical Preservation 5 



438 



reliable format for holding film information. As noted in 
Recommendation 3.2, saving the original film artifact remains a basic 
archival principle. 



New preservation technologies offer opportunities to break through 
the current impasse, but they need to be approached cautiously. The 
very speed of technological evolution reinforces the apparently old- 
fashioned importance of saving film as film. 



Television and Video Preservation 



Motion pictures represent, as testimony and written comments last 
year pointed out, only a portion of America's moving image heritage. 
Since the advent of television broadcasting, archives have moved 
rapidly into collecting 16mm newsfilm, kinescopes of early 
broadcasts, and videotape— often rescuing material thrown away by 
television stations. As video has become more portable and 
inexpensive, many organizations, including most U.S. government 
agencies, have switched from film to video for internal documentation 
and educational outreach. These organizations are now sending 
videotapes, many in obsolete formats, to archives. 

There is little up-to-date information on the problems facing 
American television and video preservation. Merely documenting the 
size of national collections is a formidable task. The most recent 
survey, completed eight years ago by the National Center for Film 
and Video Preservation at the American Film Institute, counted 
among 28 responding archives over 125,000 hours of video in a 
range of formats— 1/2-inch and 3/4-inch cassette; 1/2-inch, one-inch, 
and two-inch open reel— as well as millions of feet of newsfilm and 
filmed television programs. To judge from the popularity of video 
and the evolution of digital-tape formats, holdings are undoubtedly 
much larger today. 



Recommendation 3.8 : 
Television and Video 
Preservation Study 



Conduct a national study on the state of preservation of American 
television and video materials. The Library of Congress will seek 
Congressional authorization for a national study of television and 
video preservation, similar to that completed in 1993 for American 
film. This study will cover technical problems, current practices in 
public and commercial archives, the concerns of copyright owners, 
and the access needs of educators. The Library will request funding 
for both the study and development of a national television and video 
preservation plan under the framework of the American Television 
and Radio Archive (ATRA) legislation. 



10 Redefining Film Preservation 



439 
4. Rethinking Access and Archives 



Less clear-cut than the issues of physical preservation are those 
surrounding the changing needs of film users. 

Increasingly, "preservation" is understood by users and archivists 
alike to be incomplete without access to the preserved film. But as 
was evident from the hearings and testimony for Film Preservation 
1993, "access" encompasses a wide variety of film uses, including 
educational study, public exhibition, and commercial distribution. 

The principle of wider access to films is one to which everyone can 
subscribe. In practice, however, there are reasons why access will 
continue to be selective. Among studios, concerns over piracy 
remain, and cycles of access and withdrawal are used to promote 
interest in a given title. Among public archives-which typically hold 
physical copies of many films to which they possess only certain 
limited rights-there can be four broad restraints on access to any 
single work: copyright status; donor and depositor contracts; staffing 
and funding constraints; and concerns about physical fragility. Public 
archives must balance access with protecting master film copies. 

In rethinking access, the distinction between educational use and 
commercial exploitation is central. As the enabling legislation for 
this national plan directs, the recommendations below are intended to 
promote either wider educational access or public availability for 
films that, for one reason or another, remain undistributed through 
commercial markets. These recommendations look, in a sense, both 
backward and forward: attempting to save what is best in traditional 
film viewing at the same time that they encourage new delivery 
possibilities for archives and their users. It is not just nostalgia to 
believe that the theatrical film- viewing experience promotes, as does 
little else, an excitement and passion for saving older film. As things 
stand now, such exhibition is generally confined to a few large cities, 
and the number of available titles with satisfactory prints is limited. 
Recommendations 4.1 through 4.4 (as well as the tour mentioned in 
4.14) respond to this situation. There are also opportunities to 
reshape the relationships among archives, scholars, educational users, 
and rightsholders in light of evolving digital access technologies. 
Increasingly, such technologies hold the promise of opening archives 
to off-site use. Recommendations 4.6 through 4. 10 look toward this 
future. 



Rethinking Access and Archives 11 



440 



Preserving the Theatrical Experience fx)r Older Films 



ttnc key hi promoliiij; icportory exhibition is incrcasini; ilic 
availabilily of good-guality 35min prints of older U.S. films. 
Currently these prints are screened in a handful of commercial 
theaters, nonprofit niuseiuiis and archives, and tllm festivals. The 
commercial repeilory market is small compared to first run 
exhibition, but such screenings are important in continuing public 
education aKnit .Vmerican culture and film an. 

Repert0i7 piDgrammers. in informal interviews this spring, believed 
that availability of titles in good-quality .^.Smm prints has declined 
over the past five years, although no national statistics have been 
kept lliey identified as unavailable many relatively recent 
independently produced narrative features as well as older "classic" 
titles, with the availability of the latter varying significantly among 
the major studios. The range of .^."^mm prints available to an 
exhibitor currently depends on per.sonal contacts, the theater's 
reputation, and its nonprofit or commercial status. A few difficulties 
nterely involve communication and logistics. Tracking down 
exhibition prints of older .American films is probably the most time- 
consuming challenge of rei^rtory work and c;ui require contacting 
any number of studios, exhibitors, archives, or collectors. 

ITie following four recommendations suggest various options to 
expand access to .American films as they were originally experienced. 



Recommendation 4.1: 
Repertory Exhibitors 



I'rgc rvhibitors of older American films to work as a group to 
incrciise 35mm print availability Representatives of several major 
studios have expressed genera! w illingness to strike new 35mm 
exhibition prints if preprint is a\ailable and if assured of a sufficient 
number of exhibition engagements. However, it is currently difficult 
to get collective feedback from exhibitors of older .American films. 
Many such exhibitors -the commercial theaters, nonprofit museums 
and archives, and film festivals-exchange information informally, but 
they lack a means of [xxiling preferences for print suppliers. 



As a first step, the N.itional Film Preservation Board plans to 
convene a working session of studio, distributor, archive, and 
exhibitor representatives to review the current interrelationships of 
market demand, preservation work, and exhibition print prixiuction 
for older .American fiction films and look for ways to integrate 
exhibitor input. Ideally, after meeting informally. s(vciali/ed 
repertory exhibitors would choose to form an organization of their 
own to work with print suppliers. 



12 



Rfdffvtiftf Film Prrserwuion 



441 



Recommendation 4.2 : 
Studio Repertory 
Operations 



Recommendation 4.3 ; 
Fee-Sharing for 
Archival Loans 



One promising approach for expanding the number of circulating 
titles, explored by task force members, is to solicit exhibitor booking 
preferences when new preservation materials are about to be prepared 
by studios and archives; dius additional theatrical prints could be 
produced at the most cost-effective point in the preservation cycle. 
This approach should be tested in a pilot project involving a single 
studio and a group of exhibitors. 

Exhibitors should also be allowed to pay the cost of striking new 
prints when studio preprint is available, with those costs credited 
against rentals, not charged separately. 

There is no simple way to increase the number of theaters where 
audiences can experience older films. One useful step would be to 
address lenders' concerns about sending archival and studio prints to 
unfamiliar venues. Increased circulation of rare prints rests to a large 
extent on an assurance that they will be returned in good condition or 
replaced if damaged. Task force members did not see formal 
certification of theaters for rare print exhibition as a practical 
alternative at this time, although they did see value in sharing 
information among archives, distributors and studios about theaters 
capable of showing such prints correctly and without damage. Task 
force members have also developed Supporting Document B, 
Handling and Projeaing 35mm Archive and Studio Prints, to 
encourage proper care of rare prints. The National Film Preservation 
Board will make these voluntary guidelines available to lenders, 
exhibitors and projectionists. 

Encourage each m^jor studio to designate and publicize the name 
of a contact person for repertory matters and, where possible, to 
establish a regular repertory distribution service. In terms of 
ease-of-access, exhibitors distinguish between studios with repertory 
(or "classics") divisions and those without. Repertory divisions 
generally carry an inventory of circulating 35mm prints of well- 
known back titles and will negotiate internally for the striking of new 
prints, should diere be sufficient exhibitor interest, good-quality 
preprint material, and no rights restriaions. Some studios also 
license their back titles through distributors, who may not have 
physical custody of the 35mm prints. The step proposed in this 
recommendation would begin to simplify communications. 

Compensate public and nonproFit archives for the loan of prints 
of commercially owned titles that are unavailable from other- 
sources. Large U.S. public archives are regularly called upon to 
lend prints of titles that are (a) commercially owned but (b) 
unavailable from studios or their distributors. As now configured. 



Rethinking Access and Archives 13 



442 



these loans are a source of discontent to both borrowers and lenders. 
The borrower usually pays a handling fee to the archive but also pays 
the standard rental fee to the studio (or distributor), notwithstanding 
the source of the print. Archivists are wary of approving many such 
loans (and those to only well-established nonprofit exhibitors and 
festivals), primarily because they have insufficient funds to replace 
film materials, should damage occur. Public archives would prefer 
that commercially owned films be available through commercial 
distributors but are willing to fill the gap in special circumstances. 

Task force members have endorsed the principle that archives should 
charge a handling fee for the loan of prints of commercially owned 
titles that are unavailable from other sources. In these cases, the 
handling fee is paid to the archive to help offset print maintenance, 
loan and replacement costs. Fee-sharing for commercially out-of- 
print titles has been pioneered by the Universal City Studios in loans 
from the UCLA Film and Television Archive to the Stanford Theatre. 
The National Film Preservation Board will work to promote this fee- 
sharing approach for rare, commercially unavailable prints and 
stimulate discussions to extend the Universal-UCLA-Stanford Theatre 
model. 



Recommendation 4.4 : 
Print Banks 



Expand nonprofit distribution of archival exhibition prints, 
particularly of public domain titles, through centralized "print 
banks." In addition to the commercially owned titles discussed 
above, there is need to improve the print availability of public domain 
films, especially those older than 75 years (generally the maximum 
term of U.S. copyright). Many older public domain titles are 
distributed in poor duplicate prints that do little Justice to their 
originals. Nonprofit print banks can serve as an expanded 
distribution node for good-quality 35mm prints of public domain 
films preserved in public archives. Print banks might also handle 
selected copyrighted films designated by rightsholders. 



The National Film Preservation Board will explore a range of 
implementation options, including the creation of a new service with 
the cooperation of U.S. archives and the expansion of 35mm loans 
through the Museum of Modem Art's Circulating Film Library. 



Recommendation 4.5 : 
16mm Film 



Promote the continued availability of certain categories of unique 
16mm film. Although there is a widespread sense that 16mm film is 
a dying format-replaced in the classroom and elsewhere by videotape 
and videodisc-the 16mm gauge deserves continued support in certain 
cases. One important distinction is between 16mm reduction copies 
of 35mm films and works created on 16mm, including most postwar 
documentaries, home-movies from the 1920s through the 1940s, and 



14 Redefining Film Preservation 



443 



many independent shorts and features. These original 16mm works 
deserve the principal preservation and access support, but an 
unknown number of titles created on 35mm survive only as 16mm 
reduction prints and also require attention. 

Because original works or best surviving copies are sometimes buried 
within 16mm collections, the National Film Preservation Board urges 
those institutions that are shifting to video to consult with archives 
before disposing of their 16mm film. 



The ARCfflVAL Role in the Information Age 



Now that visual information can be transmitted through a combination 
of new communications and digital technologies, many roles are 
opening to film archives. But for all the hopes and promises, their 
exact future is not at all clear. Will archives become museums of 
film? Will they become nodes on the information highway? Will 
they try to offer a range of options? Proponents of new technologies 
predict that public archives will be able to deliver services to more 
users and to remote locations, although the costs associated with 
digitization of visual material suggest that private partners will be 
necessary. With such partnerships can come a blurring of the 
boundary between educational and commercial uses. The challenge is 
to craft new access technologies and entrepreneurial opportunities so 
as to respect the concerns of copyright holders while ftirthering the 
two historical missions of archives: to support scholarship and 
education at minimal cost to users, and to preserve film artifacts. 



The next five recommendations seek to improve archival access, 
beginning with current issues. 



Recommendation 4.6 : 
Archival 
Pfaotoduplication 
Services 



Urge individual archives to clarify their policies for 
photoduplication services, particularly for obtaining "frame 
enlargements" and copies of titles for which no copyright or 
donor restrictions exist. In testimony and submissions for Film 
Preservation 1993, two archival photoduplication policies were the 
subject of particular contention: those for "frame enlargements" and 
those for copies of public domain films. 



Among scholars, frame enlargements-still photographs made directly 
from the motion picture film-have become important in publication 
and to a lesser degree in classroom teaching. They reproduce the 
exact on-screen image, unlike "production stills," which are crisper 
and more easily obtainable publicity images preferred for commercial 
illustrations. 



Rethinking Access and Archives 15 



444 



Of more interest to collectors, distributors and filmmakers is another 
archival service allowing for the purchase of copies of films for 
which there are no copyright or donor restrictions. 

Making copies from archival material often involves questions of 
rights clearances (see Recommendation 4.7 below) or of donor 
restrictions (see 4.8). Archives are additionally concerned about 
possible physical damage to prints used in making frame 
enlargements and to preprint used to strike purchase copies of public 
domain films. There is no universal solution to these essentially local 
problems. The National Film Preservation Board, however, 
recommends that archives clarify their policies and procedures in both 
areas. 



Recominendation 4.7 : 
Rights Clearances 



Begin discussions on simplifying rights clearances for the reuse of 
film images and sequences in educational and scholarly 
applications. Film reproduction in scholarship is beginning to move 
from frame enlargements in print publications to frames, sounds and 
sequences in educational multimedia. Meanwhile, the legal 
framework for rights clearances is still embedded in the past. To 
obtain permission to reproduce copyrighted material from a studio- 
produced film, an educator must now negotiate with the studio, and, 
in some cases, the rights owners of the underlying materials, such as 
the music or story. Such clearances are currently so complex and 
expensive that, in practice, the "fair use" permitted by U.S. copyright 
law is often stretched past the breaking point and proper permissions 
evaded. 



Recommendation 4.8 : 
Updating Donor 
Agreements 



The National Film Preservation Board recognizes the value to all 
parties of exploring a centralized, "one-stop" approach to rights 
clearances for film materials. Under the auspices of the U.S. 
Copyright Office, the Board will begin discussions among educators 
and rightsholders on mechanisms to simplify rights clearances for the 
reuse of film materials in educational and scholarly applications. As 
an intermediate measure, the Board will ask studios to publicize the 
name of contact persons handling educational and scholarly requests 
to publish film-related images and sequences. 

Encourage film donors and public archives to discuss, on a case- 
by-case basis, increased access to public domain Tilms older than 
75 years. Another obstacle to greater educational and public access 
to film lies in the gift agreements negotiated years ago by donors and 
public archives. Under the terms of some older contracts, donors 
have the right to control access to their collections in perpetuity. As 
critics pointed out at the 1993 hearings, these arrangements can 
restrict the archive's ability to screen films in public programs and 



16 Redefining Film Preservation 



445 



Recommendation 4.9 : 
Public Domain Films 
in Archives 



can limit types of access even after the 75 years permitted by U.S. 
copyright law. 

The Board, recognizing that circumstances surrounding gifts vary 
widely, recommends that increasing access to donor-controlled public 
domain materials be approached on a case-by-case